United States District Court, E.D. Virginia, Norfolk Division
MICHAEL L. CASEY, Plaintiff,
BANK OF AMERICA, N.A., Defendants.
OPINION & ORDER
COKE MORGAN, JR. SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court pursuant to Defendant Bank of
America, N.A.'s ("Defendant" or
"BANA") Motion to Dismiss ("Motion").
Doc. 6. For the reasons stated herein, the Court DENIES the
Motion as to Counts I and II and GRANTS the Motion as to
March 21, 1994, Michael L. Casey ("Plaintiff) entered
into a mortgage loan, evidenced by a note and secured by a
deed of trust, to purchase a home. Am. Compl. ¶ 8. Bank
One Mortgage Corporation was the original lender on the
mortgage and BANA became the holder of the note. Id.
At some point, Plaintiff fell behind on his mortgage
payments. Am. Compl. ¶ 10. In early 2009, Plaintiff
entered into discussions with BANA regarding loan
modification. Am. Compl. ¶ 11.
April 26, 2010, when Plaintiff was in arrears and BANA was
threatening foreclosure, a BANA representative "assured
[Plaintiff] that if he paid [BANA] $11, 000 in spendable
funds within 48 hours thereafter, he would be current and
would not face any foreclosure action." Am. Compl.
¶ 18. BANA further assured Plaintiff that "he would
remain current on what would be a loan modification by making
ten monthly payments of $1, 390, with the first of those $1,
390 payments to be made on May 26, 2010 and the remaining
payments on the 26 day of successive months." Id; Doc. 9
at 2. Plaintiff timely delivered $11, 000 in spendable funds,
in the form of a cashier's check, to a branch office of
BANA in Norfolk "and delivered the same to Linda
Rudnick, Personal Banker at that branch of [BANA]." Am.
Compl. ¶ 21. BANA, through Ms. Rudnick, accepted
Plaintiffs $11, 000 cashier's check. Am. Compl. ¶
22. In accepting Plaintiffs funds, Ms. Rudnick repeated the
assurances made by the initial BANA representative, "to
wit: that if [Plaintiff] paid the $11, 000 in spendable funds
within 48 hours, he would be current and would not face any
foreclosure action." Am. Compl. ¶¶ 18, 22;
Doc. 9 at 2. Plaintiff avers that BANA, in accepting his
funds and making such statements, did so fraudulently and
without any intent to abide by its [ ] fraudulent
assurance." Am. Compl. ¶ 22. Further, Plaintiff
claims Ms. Rudnick, "in repeating the said assurances,
made such assurances as an intentional falsehood with intent
to mislead [Plaintiff], and did mislead [Plaintiff]."
claims BANA retained Plaintiffs $11, 000 "for a material
period of time before returning the same to
[Plaintiff]." Am. Compl. ¶ 23. "After
accepting the $11, 000 cashier's check, [BANA] instructed
a substitute trustee to foreclose on the home. The substitute
trustee advertised the home for sale on May 26, 2010."
Am. Compl. ¶¶ 25, 26. After the advertisement was
published, BANA sent Plaintiff documents and instructed
Plaintiff "to return the documents along with a
considerable sum of money to be considered for a loan
modification." Am. Compl. ¶ 27. BANA then called
Plaintiff and informed him "a 'negotiator' would
call him to discuss." Am. Compl. ¶ 28. Plaintiff
obtained legal counsel and filed a lawsuit that resulted in
the cancelation of the foreclosure scheduled for May 26,
2010. Am. Compl. ¶ 29.
case was removed to this Court on August 5, 2016. Doc. 1. On
August 15, 2016, Plaintiff filed the Amended Complaint in
this Court. Doc. 5. On August 31, 2016, BANA filed the
instant Motion to Dismiss. Doc. 6. On September 15, 2016,
Plaintiff responded in opposition to BANA's Motion. Doc.
9. Also on September 15, 2016, Plaintiff filed a Motion for
Leave to File Late Memorandum in Opposition to Motion to
Dismiss ("Motion for Leave"). Doc. 10. On October
7, 2016, the Court DISMISSED Plaintiffs Motion for Leave as
MOOT. Doc. 13. On October 11, 2016, Plaintiffs counsel filed
a Motion to Withdraw Appearance as Counsel and for Removal
from Electronic Notification Lists ("Motion to
Withdraw"). Doc. 14. On October 26, 2016, the Court
GRANTED Plaintiffs counsel's Motion to Withdraw. Doc. 17.
Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss
tests the sufficiency of a complaint; 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). "To
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) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)); see also Venkatraman v. REI Sys.. Inc., 417
F.3d 418, 420 (4th Cir. 2005) ("In considering a motion
to dismiss, we accept as true all well-pleaded allegations
and view the complaint in the light most favorable to the
plaintiff) (citing Mylan Labs.. Inc. v. Matkari. 7
F.3d 1130, 1134 (4th Cir. 1993)). A complaint establishes
facial plausibility "once the factual content of a
complaint allows the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged." Nemet Chevrolet Ltd. v.
Consumeraffairs.com. Inc., 591 F.3d 250, 256 (4th Cir.
2009) (quoting Iqbal, 556 U.S. at 678). Therefore,
the complaint need not include "detailed factual
allegations" as long as it pleads "sufficient facts
to allow a court, drawing on judicial experience and common
sense, to infer more than the mere possibility of
misconduct." Id. Although a court must accept
as true all well-pleaded factual allegations, the same is not
true for legal conclusions. "Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice." Iqbal, 556 U.S. at
deciding the motion, a court may consider the facts alleged
on the face of the complaint as well as "'matters of
public record, orders, items appearing in the record of the
case, and exhibits attached to the complaint.'"
Moore v. Flagstar Bank, 6 F.Supp.2d 496, 500 (E.D.
Va. 1997) (quoting 5A Charles A. Wright & Arthur R.
Miller, Federal Practice & Procedure § 1357 (1990)).
The court may look to documents attached to the complaint and
those incorporated by reference without converting a Rule
12(b)(6) motion into a Rule 56 motion for summary judgment.
See Pueschel v. United States, 369 F.3d 345, 353 n.3
(4th Cir. 2004) (citations omitted).
"[i]n alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or
mistake." Fed.R.Civ.P. 9(b). To satisfy the heightened
pleading standard of Rule 9(b), a Plaintiff must plead with
particularity "the time, place, and contents of the
false representations, as well as the identity of the person
making the misrepresentation and what he obtained
thereby." In re Mut. Funds Inv. Litig., 566
F.3d 111, 120 (4th Cir. 2009) (quoting Harrison v.
Westinghouse Savannah River Co.,176 F.3d 776, 784 (4th
Cir. 1999)). However, "Rule 9(b) allows conclusory
allegations of defendant's knowledge as to the true facts
and of defendant's intent to deceive."
Harrison, 176 F.3d at 786; see also
Fed.R.Civ.P. 9(b) ("Malice, intent, knowledge, and other
condition of mind of a person may be averred
generally."). In ...