United States District Court, E.D. Virginia, Richmond Division
Hannan Lauck United States District Judge
matter comes before the Court on Defendant Branch Banking
& Trust Company's ("BB&T") Motion to
Dismiss Plaintiffs First Amended Complaint (the "Second
Motion to Dismiss"), (ECF No. 16), for "failure to
state a claim upon which relief can be granted." Fed. R.
Civ.P. 12(b)(6). Plaintiff Helen Ramsey has responded, (ECF
Nos. 18, 19), and BB&T has replied, (ECF No. 20). This
matter is ripe for disposition. The Court dispenses with oral
argument because the materials before it adequately present
the facts and legal contentions, and argument would not aid
the decisional process. The Court exercises jurisdiction
pursuant to 28 U.S.C. § 1332. For the reasons that follow,
the Court will grant BB&T's Second Motion to Dismiss.
Motion to Dismiss for Failure to State a Claim
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 5 A
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. Matkari, 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 (2009).
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."' BellAtl. 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
conceivability 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. Walk, 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 Alternative 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.
incorporates by reference four documents attached to her
Complaint,  and she attaches to her First Amended
Complaint a "Mortgage Loan Coupon Book, " (First
Am. Compl. Ex. E, ECF No. 15-1). The Court will consider
these documents because they are central to the claims, are
sufficiently referred to in the First Amended Complaint, and
neither party contests their authenticity. See
Witthohn, 164 F.App'x at 396-97 (citations omitted).
Factual and Procedural Background
A. Summary of Allegations
in the Complaint
December 13, 2005, Ramsey signed a sales contract with the
Sellers to purchase real property located at 7101 Old
Dickersons Road in Spotsylvania County, Virginia ("the
Property"). The Property "was listed and described
as a one (1) bedroom house." (First Am. Compl. ¶
15, ECF No. 15.) The sales contract listed a $220, 000
purchase price. On December 19, 2005, Ramsey applied for a
mortgage loan with BB&T in the amount of $209, 000.
During this process, BB&T loan officer Susan Cadow told
Ramsey that BB&T "could not approve her for a loan
for a one (1) bedroom home." (Id. ¶ 23.)
Following a private conversation between Cadow and Jimmy
Hedge, a brokerage firm representative from Remax
Supercenter, BB&T approved Ramsey for a $209, 000
mortgage loan. Ramsey believed BB&T approved her for a
mortgage loan for a one-bedroom home. Cadow, however, did not
specifically inform Ramsey "that she had qualified and
been approved for a mortgage loan for a one (1) bedroom
house." (Id. ¶29.)
January 5, 2006, Ramsey and the Sellers closed the sale.
Ramsey did not receive a copy of an appraisal report prior to
or during closing. On January 6, 2006, Ramsey executed a Deed
of Trust "and possibly a promissory note" that gave
BB&T an interest in the Property. (Id. ¶
33; Compl. Ex. B, ECF No. 1-2.)
approximately January or February 2009, three years after
closing, Ramsey sought to refinance her mortgage and obtain
lower insurance coverage or sell the Property. During this
process, Ramsey learned the Property was identified as a
two-bedroom property. Ramsey requested, and BB&T
ultimately provided, at least a partial copy of the appraisal
report. The appraisal report indicates A Appraisals, Inc.
completed the appraisal on approximately December 30, 2005,
and identified the Property as a two-bedroom property with an
appraised market value of $220, 000.
March 2009, a fire destroyed the Property, and Ramsey made a
claim with her insurance carrier, State Farm. State Farm
"refused to pay [Ramsey] a claim for a two (2) bedroom
property" and instead paid her $157, 566, "the
replacement cash value for a one (1) bedroom property."
(First Am. Compl. ¶¶ 53-55.)
applied the insurance proceeds to her BB&T mortgage loan.
Although Ramsey "believed that the [insurance proceeds]
should have completely satisfied the mortgage loan, "
"BB&T claimed that [Ramsey] still owed approximately
[$42, 900.31]." (Id. ¶¶ 57, 60.)
Ramsey contends the mortgage loan for a two-bedroom home
would have been higher than the loan for a one-bedroom home.
2009, "BB&T forced [Ramsey] to sign a Modification
Agreement" to her Deed of Trust. (Id. ¶
62.) The Modification Agreement stated that, beginning March
1, 2010, Ramsey owed a monthly mortgage payment of $281.87.
contends the appraisal of the Property as a two-bedroom home,
rather than a one-bedroom home, resulted in an appraised
market value "likely tens of thousands of dollars
greater than the actual market value" of the Property.
(Id. ¶ 65.) Additionally, Ramsey "believes
that the fair market value of the [P]roperty, if it would
have been properly appraised as a one (1) bedroom property in
December of 2005, would have been less than the $157, 566.00
payment that [Ramsey] received from State Farm."
(Id. ¶ 68.)
to purchasing the Property, Ramsey did not know, and BB&T
did not inform her of, the Property's appraised value or
its appraisal as a two-bedroom home. Ramsey has paid over
$230, 000 to BB&T since January 2006 based upon the
belief that BB&T is lawfully entitled to receive and
collect these payments. BB&T has represented to Ramsey
that its collection of the payments is lawful. About once a
year, a BB&T representative delivers to Ramsey
BB&T's Mortgage Loan Coupon Book, which reflects the
mortgage loan allegedly owed. As summarized in the First
Amended Complaint, the Mortgage Loan Coupon Book states that
BB&T "will foreclose on [Ramsey's] property,
assess late charges, and/or take other action adverse to
[Ramsey's] interests, if [Ramsey] ...