United States District Court, E.D. Virginia, Richmond Division
FREDICIA HARDNETT and WILBERT A. HARDNETT, Plaintiffs,
M&T BANK and ATLANTIC LAW GROUP, Defendants.
Hannah Lauck Judge.
matter comes before the Court on the Motion to Dismiss
pursuant to Federal Rule of Civil Procedure
12(b)(6) filed by Defendant M&T Bank. (ECF No.
4). Plaintiffs Fredicia Hardnett and Wilbert A. Hardnett
(collectively, the "Hardnetts"), proceeding pro
se, responded, and M&T Bank
replied. (ECF Nos. 7, 8.) The matter is ripe for
disposition. The Court exercises jurisdiction pursuant to 28
U.S.C. § 1332. The Court dispenses with oral argument
because the materials before the Court adequately present the
facts and legal contentions, and argument would not aid the
decisional process. For the reasons that follow, the Court
will grant the Motion to Dismiss. (ECF No. 4.)
Standard of Review
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, it does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party of N.C.
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A
Charles A. Wright & Arthur R. Miller, Federal Practice
and Procedure § 1356 (1990)). In considering a motion to
dismiss for failure to state a claim, a plaintiffs
well-pleaded allegations are taken as true and the complaint
is viewed in the light most favorable to the plaintiff.
Mylan Labs., Inc. v. Matkar, 7 F.3d 1130, 1134 (4th
Cir. 1993); see also Martin, 980 F.2d at 952. This
principle applies only to factual allegations, however, and
"a court considering a motion to dismiss can choose to
begin by identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth." Ashcroft v. Iqbal, 556 U.S. 662, 679
Federal Rules of Civil Procedure "require[ ] only 'a
short and plain statement of the claim showing that the
pleader is entitled to relief, ' in order to 'give
the defendant fair notice of what the ... claim is and the
grounds upon which it rests.'" Bell Atl Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (omission in original)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Plaintiffs cannot satisfy this standard with complaints
containing only "labels and conclusions" or a
"formulaic recitation of the elements of a cause of
action." Id. (citations omitted). Instead, a
plaintiff must assert facts that rise above speculation and
inconceivability to those that "show" a claim that
is "plausible on its face." Iqbal 556 U.S.
at 678-79 (citing Twombly, 550 U.S. at 570;
Fed.R.Civ.P. 8(a)(2)). "A claim has facial 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." Id. at 678
(citing Twombly, 550 U.S. at 556). Therefore, in
order for a claim or complaint to survive dismissal for
failure to state a claim, the plaintiff must "allege
facts sufficient to state all the elements of [his or] her
claim." Bass v. E.I DuPont de Nemours &
Co., 324 F.3d 761, 765 (4th Cir. 2003) (citations
on a motion under Rule 12(b)(6).. ., matters outside the
pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule
56, " and "[a]ll parties must be given a reasonable
opportunity to present all the material that is pertinent to
the motion." Fed.R.Civ.P. 12(d); see Laughlin v.
Metro. Wash Airports Auth., 149 F.3d 253, 260-61 (4th
Cir. 1998); Gay v. Watt, 761 F.2d 175, 177 (4th Cir.
1985). However, "a court may consider official public
records, documents central to plaintiffs claim, and documents
sufficiently referred to in the complaint [without converting
a Rule 12(b)(6) motion into one for summary judgment] so long
as the authenticity of these documents is not disputed."
Witthohn v. Fed. Ins. Co., 164 F.App'x 395,
396-97 (4th Cir. 2006) (citing Alt. Energy, Inc. v.
St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33
(1st Cir. 2001); Phillips v. LCI Int'l, Inc.,
190 F.3d 609, 618 (4th Cir. 1999); Gasner v. Cty. of
Dinwiddle, 162 F.R.D. 280, 282 (E.D. Va. 1995)).
Bank attaches a May 4, 2007 deed of trust (the "Deed of
Trust"), a February 11, 2013 assignment of the Deed of
Trust (the "Assignment"), and a 2010 bankruptcy
petition filed by the Hardnetts in the United States
Bankruptcy Court for the District of Maryland (the
"Bankruptcy Petition"). (ECF No. 5-1.) No party
contests the authenticity of these documents. The Hardnetts
do not mention the Bankruptcy Petition, or the facts
contained therein, in any of their filings. However, the
Hardnetts do refer to both the Deed of Trust and the
Assignment in the Complaint. Deeming these two documents
central to the claims, the Court will consider the Deed of
Trust and the Assignment. See Witthohn, 164
F.App'x at 396-97 (citations omitted).
courts have a duty to construe pro se pleadings
liberally. Bracey v. Buchanan, 55 F.Supp.2d 416, 421
(E.D. Va. 1999). A pro se plaintiff must
nevertheless allege sufficient facts to state a cause of
action. Id. (citing Sado v. LelandMem 7
Hosp., 933 F.Supp. 490, 493 (D. Md. 1996)). The
Court cannot act as a pro se litigant's
"advocate and develop, sua sponte, statutory
and constitutional claims" that the litigant failed to
raise on the face of the complaint. Newkirk v. Circuit
Court of Hampton, No. 3:14cv372, 2014 WL 4072212, at * 1
(E.D. Va. Aug. 14, 2014).
Procedural and Factual Background
Summary of Allegations in the
Hardnetts own a house at 17501 Owens Landing Road, King
George, Virginia 22485 (the "Property"). On May 4,
2007, the Hardnetts entered into a mortgage loan with K Bank
to purchase the Property. The Deed of Trust secured the loan.
On February 11, 2013, the Federal Deposit Insurance
Corporation, as receiver for K Bank, assigned its interest
under the Deed of Trust to M&T Bank, which now claims
ownership over the Deed of Trust. On February 20, 2013, a New
York notary stamped the assignment.
Complaint lacks focus and the Hardnetts' claims are
difficult to deconstruct. Essentially, the Hardnetts contend
that defendants M&T Bank and the Atlantic Law Group
(collectively, the "Defendants") engaged in
wrongful conduct by scheduling a foreclosure sale for October
20, 2015. The Hardnetts do not dispute that they
defaulted on their loan, instead attempting to void their
debt in various ways. The Complaint does not follow a linear
pattern and does not list causes of action. However, heeding
the obligation to construe the Complaint liberally, the Court
interprets the Complaint to raise six claims:
Count I: Wrongful foreclosure because of an improper
assignment of the Deed of Trust and securitization of the
Count II: Fraud based on statements by the Defendants'
representatives that the foreclosure sale would be canceled
while a loan modification was pending;
Count III: Violation of the Fair Debt Collection Practices
Act, 15 U.S.C. § 1592, et seq.
Count IV: Breach of contract for violations of the Home
Affordable Modification Program ("HAMP");
Count V: Injunction to prevent foreclosure; and,
Count VI: Declaratory Judgment that the foreclosure sale is
"[w]rongful in letter and spirit, '' (Compl.
October 19, 2015, the Hardnetts filed their Complaint in this
Court, which generously discerns it as articulating the six
claims outlined above. The Hardnetts seek the following
relief: (1) damages of not less than $1, 000, 000; (2)
injunctive relief to protect or grant relief from the
foreclosure sale; and, (3) a declaration that the foreclosure
against the Property is "[w]rongful in letter and
spirit." (Compl. ¶¶ 23, 31, 33, 41, 43.)
response to the Complaint, M&T Bank filed its Motion to
Dismiss. (ECF No. 4.) The Hardnetts responded to the motion.
(ECF No. 7.) M&T Bank filed a reply in support of its
Motion to Dismiss. (ECF No. 8.) The matters are ripe for
disposition. For the reasons that follow, the Court will
grant M&T Bank's Motion to Dismiss. (ECF No. 4.) The
Court will further order the Clerk to send a notice to the
Hardnetts regarding a lack of service upon defendants
Atlantic Law Group and John Does 1-10.
Analysis: Motion to Dismiss
base, the Hardnetts contend that the scheduled foreclosure on
the Property was unlawful. To recover their losses for the
alleged failures, they bring various claims against M&T
Bank, Atlantic Law Group, and John Does 1-10.
The Hardnetts Fail to State a Claim for Wrongful
Hardnetts fail to state a claim for wrongful foreclosure
because Virginia law does not recognize such a cause of action.
Further, the Hardnetts have no standing to challenge the
basis for their wrongful foreclosure claim, namely, ...