United States District Court, E.D. Virginia, Alexandria Division
LEONIE M. BRINKEIA, District Judge.
Before the Court are three motions to dismiss plaintiff's Ammended Verifyed Complaint [sic] ("Amended Complaint"), plaintiff's opposition to each motion to dismiss, three miscellaneous motions filed by plaintiff, and plaintiff's motion for default judgment against two of the defendants. For the reasons that follow, defendants' motions to dismiss under Fed.R.Civ.P. 12(b)(6) will be granted, which decision will render all of plaintiff's motions moot. Therefore, all her motions will be denied.
Plaintiff Janice Wolk Grenadier ("plaintiff' or "Grenadier"), proceeding pro se, initiated this civil action to prevent future foreclosure attempts on her property and to recover damages against seven defendants: BWW Law Group ("BWW"); Howard N. Bierman ("Bierman"); Equity Trustees, LLC ("Equity"); Mark R. Galbraith ("Galbraith"); Wells Fargo, National Association, as Trustee for Option One Mortgage Loan Trust 2005-2, Asset-Backed Certificates, Series 2005-2 ("Wells Fargo"); Bank of America, N.A., successor-in-interest to LaSalle Bank, N.A. ("BANA"); and Ocwen Loan Servicing, LLC ("Ocwen"). Galbraith is the only defendant who has not yet been served with this lawsuit. Of the remaining defendants, only BWW and Bierman have not filed a response of any kind; however, because plaintiff's Amended Complaint fails to state cognizable claims against any named defendant, her motion for default judgment against these two defendants will be denied.
This civil action arises out of the financing of real property in Alexandria, Virginia, owned by Grenadier (the "Property"). Am. Compl. ¶ 16. According to the Amended Complaint, on February 4, 2005, plaintiff received a loan for $390, 000 from Mortgage and Equity Funding Corporation ("MEFC"), which was evidenced by a Note that was secured by a Deed of Trust for the Property. Id . ¶ 27; Ex. 19 (first page of the original Deed of Trust). That same day, MEFC assigned all of its interest in the Note and Deed of Trust to Option One Mortgage Corporation ("Option One"). Am. Compl. ¶ 27; Ex. 20 (Assignment of Deed of Trust from MEFC to Option One).
In less than a year and a half, plaintiff fell into arrears in her mortgage payments. See Ex. 15, at 3 (letter dated May 26, 2006, from Howard Bierman, an attorney with BWW and counsel for substitute trustee Equity, to Grenadier informing her that Option One had requested his firm institute foreclosure proceedings). From the Amended Complaint, it is unclear exactly what happened between 2006 and the present time, but it appears plaintiff has managed to avoid a foreclosure sale.
On October 15, 2007, plaintiff entered into an agreement with Option One modifying the loan to increase the unpaid principal balance to $436, 235.86, which consisted of the unpaid amount of the original principal plus the interest capitalized to date ($50, 937.10). Ex. 22 (first two pages of the Loan Modification Agreement). The loan was subsequently transferred multiple times, and plaintiff alleges she has not been able to discern which entity owns the original Note. In addition, servicing of plaintiff's loan was transferred from Homeward Residential Inc. ("Homeward") to Ocwen, effective February 19, 2013. Am. Compl. In ¶¶ 44-45; Ex. 8 (letter dated January 28, 2013, informing plaintiff of the transfer).
Before the transfer of servicing occurred, plaintiff had been engaged in the process of seeking a loan modification under the Home Affordable Modification Program ("RAMP") with Homeward. Am. Compl. ¶ 45. Plaintiff alleges that a Homeward supervisor had advised her on three different occasions that all of the documents were in place for the RAMP modification and that the pending foreclosure had been stayed. Id . On February 19, 2013, Ocwen took over the servicing of plaintiff's loan and informed plaintiff that she would need to resubmit the documents for a RAMP modification but that she should "ignore the foreclosure date" because "a foreclosure sale cannot be conducted until after the evaluation of the HAMP program is complete." Id . ¶ 46 (internal quotation marks omitted). In a series of e-mails, Allison Melton ("Melton"), an attorney with defendant BWW, advised Grenadier that the substitute trustee, Equity, still had the foreclosure sale scheduled for February 22, 2013, and that she should contact her loan servicer, Ocwen, with any inquiries about her loan or about loss mitigation. Ex. 9, at 4. Plaintiff alleges that "Ocwen again reassured [her] they could not foreclose as the [HAMP] process had begun with Ocwen and it was illegal for them to foreclose on [p]laintiff." Am. Compl. ¶¶ 47, 50. After plaintiff conveyed her phone calls with Ocwen to Melton, Melton forwarded plaintiff's e-mails to a manager at Ocwen, who confirmed via e-mail that the sale should proceed as scheduled. Ex. 9, at 9. The next day, February 21, 2013, plaintiff filed for bankruptcy to forestall the foreclosure sale through the automatic stay accompanying bankruptcy actions. Am. Compl. ¶ 51; Ex. 10, at 3. The foreclosure sale scheduled for February 22, 2013, was cancelled and Equity has not sought to reschedule it since.
In June 2013, the bankruptcy court dismissed plaintiff's petition "with prejudice to refiling under any chapter of the Bankruptcy Code in this or any other court for a period of 1 year" because Grenadier had filed five bankruptcy cases since 2000, as well as for other reasons stated at the hearing. In re: Grenadier, Case No. 13-10791 (Bankr. E.D. Va. June 24, 2013) (emphasis in original) (order dismissing case). During the course of the bankruptcy proceeding, Grenadier learned through an e-mail exchange with attorney Mark Galbraith that his client "Wells Fargo Bank, N.A. as Trustee" was "the current and sole noteholder" for plaintiff's loan. Ex. 22, at 4-5.
Plaintiff filed her original complaint in July 2013 in the U.S. District Court for the District of Columbia. That court immediately ordered the action transferred to this district, which is where plaintiff resides, most of defendants conduct business, and the property is located. Transfer Order, July 29, 2013. Plaintiff unsuccessfully appealed that decision and her complaint was transferred to this court. She then filed the Amended Complaint at issue in the motions to dismiss.
The Amended Complaint consists of eleven counts captioned as follows:
Count 1: "Federal False Claims Act, 31 U.S.C. § 3729(a)(1)(A)[-(C)]"
Count 2: "Breach of Contract - Implied Covenant of Good Faith and Fair Dealing Breach of Contractual Duty of Good Faith and Fair Dealing Honest Services 18 U.S.C. § 1346"
Count 3: "Violation of the Fair Debt Collection Practices Act"
Count 4: "Wrongful Foreclosure Threat - Failure to Comply with RAMP rules"
Count 5: "Consumer Protection Act"
Count 6: "Breach of Fiduciary Duty - Unjust Enrichment/Constructive Trust"
Count 7: "Injunctive/Declaratory Relief'
Count 8: "Common Law Fraud 12 U.S.C. § 1972"
Count 9: "Negligence - the negligent infliction of emotional distress; the intentional infliction of emotional distress"
Count 10: "Constructive Fraud"
Count 11: "Civil Conspiracy"
Plaintiff seeks an award of $38 million in "compensatory, punitive, [and] exemplary damages" against defendants "to send a strong message that this type of behavior is unacceptable and to reimburse [plaintiff] from [sic] potential income loss." Am. Compl. at 24. She also seeks a stay of any foreclosure proceeding against her property, declaratory judgment that defendants' conduct was unconstitutional and negligent, and an injunction requiring defendants to adopt appropriate policies.
II. DEFENDANTS' MOTIONS TO DISMISS
In their motions to dismiss, defendants Wells Fargo, Ocwen, BANA, and Equity argue that, for a number of reasons, the Amended Complaint should be dismissed with prejudice in its entirety pursuant to Rule 12(b)(6) for failure to state any claim upon which relief can be granted. They also correctly argue that the Amended Complaint, as ...