United States District Court, E.D. Virginia, Alexandria Division
MEMORANDUM OPINION AND ORDER
BRUCE LEE UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Defendant Samuel I. White,
P.C.'s ("SIWPC") Motion to Dismiss (Dkt. No.
11) and Defendant HSBC Bank USA, N.A. as Trustee for Wells
Fargo Asset Securities Corporation Mortgage Pass-Through
Certificates Series 2006-11 's ("HSBC") Motion
to Dismiss (Dkt. No. 3). This case concerns pro se
Plaintiff Cristian Chistoni's claims against Defendants
seeking monetary damages, seeking declaratory and injunctive
relief, challenging Defendants' authority to foreclose on
the property at issue, and alleging that Defendants violated
the Fair Debt Collection Practices Act ("FDCPA"),
15 U.S.C. § 1692 et seq.
issue is whether, under Federal Rule of Civil Procedure
12(b)(6), Plaintiffs Complaint fails to state a claim upon
which relief can be granted, where the Complaint seeks
injunctive relief and asserts the following twelve counts:
(I) declaratory judgment, (II) civil conspiracy, (III)
negligence versus SIWPC, (IV) illegal substitution of
trustee, (V) failure to provide proof of standing to collect,
(VI-XI) violations of the FDCPA, and (XII)
fraud. The Court grants Defendants' Motions
to Dismiss Plaintiffs Complaint because the conclusory
allegations concerning nine of the claims fail to satisfy the
pleading standard, two of counts allege claims that are not
cognizable claims, and the allegations concerning the fraud
claim do not satisfy the heightened pleading standard.
Further, because Plaintiff has not shown a likelihood of
success on the merits as to any of these claims, the Court
grants Defendants' Motions to Dismiss Plaintiffs request
for injunctive relief.
about January 27, 2017, Plaintiff filed a Complaint against
HSBC and SIWPC in the Circuit Court of Fairfax County,
Virginia in the action styled as Case No. CL 2017-01286.
(Compl., Dkt. No. 1-1.) The Complaint involves claims
stemming from a postponed foreclosure sale of real property
located in Northern Virginia (the
"Property"). (Compl. ¶¶ 23, 27.) Within
thirty days of being served with the Complaint, HSBC removed
the case to this Court on March 20, 2017. (Not. Removal, Dkt.
No. 1.) HSBC removed the case to this Court based upon its
federal question jurisdiction under 28 U.S.C. § 1331.
(Id. at 3.)
denies a debt is due based on Defendants purportedly failing
to validate the debt pursuant to the FDCPA. (See
Compl. ¶ 12.) The Complaint alleges that "[o]nce
Plaintiff refused to pay, Defendants threatened with
acceleration and foreclosure of Plaintiffs Property."
(Compl. ¶ 14.) SIWPC stated, and Plaintiff has not
contested, that a foreclosure sale was scheduled for April 3,
2017 but was postponed. (Dkt. No. 11 at 2.)
Complaint sets forth twelve counts. It appears that much of
the Complaint was copied from a different pleading filed in
this Court, and therefore some of the information is not
relevant to this action-including allegations against
"BOA, " which appears to be an abbreviation for
Bank of America. Plaintiffs Complaint asserts the following
counts: (I) declaratory judgment; (II) civil conspiracy;
(III) negligence versus SIWPC; (IV) illegal substitution of
trustee: (V) failure to provide proof of standing to collect;
(VI-XI) violations of the FDCPA; and (XII) fraud.
filed a Motion to Dismiss on March 27, 2017 (Dkt. No. 3), and
SIWPC filed a Motion to Dismiss on April 4, 2017 (Dkt. No.
9). HSBC moves to dismiss primarily based on five grounds.
First, HSBC argues that the Complaint fails to
allege facts with sufficient specificity to inform HSBC of
what it is being accused of so that it can respond to the
allegations. Second, HSBC argues that Plaintiffs
"show me the note" claims are contrary to
Virginia's non-judicial foreclosure process and caselaw
interpreting Virginia law. Third, HSBC argues that
Plaintiff lacks standing to contest the appointment of a
substitute trustee or assignment of the deed of trust because
Plaintiff is not a party or beneficiary of those agreements.
Fourth, HSBC describes why it believes Plaintiff
fails to allege a plausible claim- for example, because the
allegations do not support each element of the claim, or
because die claim is not cognizable. Fifth, HSBC
argues that Plaintiff is not entitled to injunctive relief
because he is unlikely to succeed on the merits. SIWPC moves
to dismiss largely based on the same grounds, and SIWPC's
brief expressly incorporates the arguments made in HSBC's
brief. Both Defendants seek to dismiss Plaintiffs Complaint
Plaintiff is proceeding pro se, both Defendants
filed a notice pursuant to Roseboro V. Garrison, 528
F.2d 309 (4th Cir. 1975) and Local Civil Rule 7(K).
(See HSBC's Roseboro Not., Dkt. No. 3 at 3;
SIWPC's Roseboro Not., Dkt. No. 10.) As stated in those
notices, Local Civil Rule 7(K) required Plaintiff to file his
response within twenty-one days of when Defendants filed the
motions to dismiss. More than twenty-one days passed since
Defendants moved to dismiss the Complaint, and Plaintiff did
not file a response. In addition, Plaintiff did not attend
the motion hearing on May 5, 2017, and therefore did not
contest Defendants' Motions to Dismiss.
Standard of Review
motion to dismiss a complaint under Federal Rule of Civil
Procedure 12(b)(6) should be granted unless the complaint
"states a plausible claim for relief under Rule 8(a).
Walters v. McMahen, 684 F.3d 435, 439 (4th Cir.
2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009)). The complaint must contain sufficient factual
allegations "to raise a right to relief above the
speculative level" and "nudge [the] claims across
the line from conceivable to plausible." Vitol, S.A.
v. Primerose Shipping Co., 708 F.3d 527, 543 (4th Cir.
2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555, 570 (2007)). In considering a Rule 12(b)(6) motion,
the Court "must accept as true all of the factual
allegations contained in the complaint, " drawing
"all reasonable inferences" in the plaintiffs
favor. E.I. du Pont de Nemours and Co. v. Kolon Indus.,
Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations
omitted). No such assumption of truth is afforded to those
"naked assertions" and "unadorned conclusory
allegations" devoid of "factual enhancement."
Vitol, 708 F.3d at 543 (citations omitted). Thus,
the court's review involves the separation of factual
allegations from legal conclusions. Burnette v.
Fahey, 698 F.3d 171, 180 (4th Cir. 2012). Although,
courts construe pro se complaints liberally.
Estelle v. Gamble, 429 U.S. 97, 106 (1976);
Beaudett v. City of Hampton, 775 F.2d 1274, 1277-78
(4th Cir. 1985).
from the pleading requirement under Rule 8(a), a heightened
pleading standard applies to allegations of fraud pursuant to
Rule 9(b). Rule 9(b) requires that claimants plead fraud with
particularity. Harrison v. Westinghouse Savannah River
Co.,176 F.3d 776, 783-84 (4th Cir. 1999). The
circumstances required to be alleged with particularity under
Rule 9(b) are "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." Id. (citation and internal quotation
marks omitted). Failure to ...