United States District Court, E.D. Virginia, Richmond Division
HANNAH LAUCK UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Bayview Loan
Servicing, LLC's ("Bayview") Motion to Dismiss,
filed pursuant to Federal Rule of Civil Procedure
12(b)(6).(ECF No. 14.) Thurmond responded,
(ECF No. 18), and Bayview replied, (ECF No. 19). Accordingly,
the matter is ripe for disposition. The Court exercises
jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C.
§ 1367. 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.
Standard of Review
Federal Rule of Civil Procedure
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.'" 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
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
Obligation to Construe Pro Se Pleadings Liberally
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 facts sufficient to state a cause of
action. Id. (citation omitted). The Court cannot act
as a pro se litigant's "advocate and
develop, sua sponte, statutory and constitutional
claims that the [litigant] failed to clearly 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).
Effect of Extrinsic Documents
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. Wall, 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 Fed.Appx. 395, 396-97
(4th Cir. 2006) (citations omitted). "[I]n the event of
conflict between the bare allegations of the complaint and
any attached exhibit..., the exhibit prevails."
Fayetteville Inv'rs v. Commercial Builders,
Inc., 936 F.2d 1462, 1465 (4th Cir. 1991).
attaches four exhibits-two of which are identical-to her
response: (1) her "Demand for Acceptance Notice, "
addressed to the Chief Financial Officer of Bayview (the
"Demand for Acceptance"), (ECF No. 18-1); (2) the
Deed of Trust governing her loan (the "Deed of
Trust"), (ECF No. 18-2); (3) an identical copy of the
Demand for Acceptance, (ECF No. 18-3); and, (4) a March 24,
2016 letter addressed to Thurmond from M. Richard Epps, P.C.,
informing Thurmond that the firm has been retained to
initiate foreclosure proceedings and advising Thurmond of the
amount remaining on her loan (the "Epps Letter"),
(ECF No. 18-4). The Court will consider the Demand for
Acceptance, (ECF No. 18-1), and the Deed of Trust, (ECF No.
18-2), in ruling on the Motion to Dismiss because both of
those documents are sufficiently referred to in the Amended
Complaint and neither party disputes their authenticity. The
Court will not consider the Epps Letter in ruling on the
Motion to Dismiss because, although neither party disputes
its authenticity, Thurmond's Amended Complaint omits
reference to that letter altogether.
Procedural and Factual Background
Summary of Allegations in the
Amended Complaint contains numerous conclusory statements
asserting that Bayview violated the law and her rights in
multiple ways. At base, Thurmond appears to challenge various
actions by Bayview related to her home mortgage loan and
Bayview's supposed attempts to foreclose on it.
alleges that, on April 6, 2016, she mailed Bayview a
"Notice of Dispute and Validation of Debt, " and
that Bayview then failed to "send out the required
1692(g) letter." (Am. Compl 2.) She contends
that it is Bayview's practice "to maliciously,
willfully, reckless, wantonly [, ] and/or negligently ignore
and refuse to follow the requirements of the FDCPA
1692(e) by providing false and misleading
representation, and state law." (Am. Compl. 2.)
further asserts that, on September 12, 2016, she sent Bayview
a "Presentment (Notice of Demand for Acceptance) along
with tendered payment (Promissory Note No. BV-082516) in the
sum of $326, 000.00" via registered mail. (Am. Compl.
3.) She claims that she "is a Secured Party Creditor for
her Security Entitlement interest, " and that Bayview
"failed to comply with the terms of the Presentment and
The Uniform Commercial Code 3-502 and 4-302resulting in a
Dishonor and breach of agreement." (Am. Compl. 3.)
also contends that Bayview "repeatedly threaten[ed] the
sale of [her] property by posting in the Richmond Times
dispatch unjustly even after [Thurmond] provided material
facts that [her account] was tendered and the debt discharged
and that [Thurmond] is a secured party." (Am. Compl. 3.)
sets forth three causes of action:
Count One: "F.D.C.P.A. Violations"
- Thurmond alleges that Bayview violated "15 USC 1692,
Communication in connection with debt collection";
"15 USC 1692(e)(a) False or Misleading
Representation"; and, "15 USC 1692(g) Validation of
debts, " (the "FDCPA Violations Claim"). (Am.
Count Two: "Breach of
Agreement" - Thurmond sent Bayview a
"Presentment, " and Bayview "dishonored tender
of payment via promissory note, " (the "Breach of
Agreement Claim"). (Am. Compl. 5.)
Count Three: "Uniform Commercial Code
Violations" - Bayview violated "Virginia
Code 8.3-603 when they failed to respond causing a Tacit
Acquiescence"; Bayview committed a "clear violation
of U.C.C. 4-302" by "not appropriately returning
the instrument of tender and/or settling the account within
forty-eight hours"; and, Bayview "Dishonored the
tender" in violation of Virginia Code 8.3A-502, (the
"U.C.C. Violations Claim"). (Am. Compl. 6-7.)
asserts that all of Bayview's actions "were done
with malice, were done willfully, and were done with either
the desire to harm Plaintiff and/or with the knowledge that
their actions would very likely harm Plaintiff and/or that
their actions were taken in violation of the FDCPA."
(Am. Compl. 2.)
requests damages for Bayview's "numerous F.D.C.P.A
violations, " "discharge of the dishonored tender
equal to the amount of tender, " "satisfaction of
mortgage lien associated with the tendered account and
discharge within 7 days, " and "to send notarized
(Jurat) letters to remove any and all negative entries"
on Thurmond's consumer credit reports. (Am. Compl. 8.)
initiated this action by filing a Complaint and a
simultaneous Motion for Protective Order. (ECF Nos. 1, 2.)
The Court denied the Motion for Protective Order, finding
that Thurmond failed to make a clear showing of a likelihood
of success on the merits of her claims. (Mar. 8, 2017 O. 3,
ECF No. 4.) The next day, Thurmond filed a Motion for a
Temporary Restraining Order and a Preliminary Injunction,
(ECF No. 7), along with her Amended Complaint, (ECF No. 9).
The Court denied Thurmond's Motion for a Temporary
Restraining Order and a Preliminary Injunction, finding that
Thurmond's Amended Complaint also failed to show a strong
likelihood of success on the merits. (Mar. 9, 2017 O. 1, ECF
No. 12.) Thurmond served Bay view with a copy of the Amended
Complaint, (see ECF No. 17), and Bayview filed a
Motion to Dismiss, (ECF No. 14). Thurmond responded, (ECF No.
18), and Bayview replied, (ECF No. 19). For the reasons that
follow, the Court will grant Bayview's Motion to Dismiss.
Analysis: Motion to Dismiss
The Court Will Dismiss Count Two, the Breach of Agreement
liberally and in the light most favorable to Thurmond, her
"Breach of Agreement" Claim rests on her contention
that she sent Bayview a "Presentment, " and Bayview
"dishonored tender of payment via promissory note"
by not either: (1) returning the promissory note within the
time Thurmond prescribed for Bayview to do so; or, (2)
"crediting [Thurmond's] account or rendering the
notice of satisfaction to [Thurmond]." (Am. Compl. 5.)
As alleged, however, Thurmond was not entitled to presentment
of the promissory note she sent Bayview, no dishonor
occurred, and Bayview breached no agreement. The Court will
dismiss Count Two, Thurmond's Breach of Agreement Claim.
Legal Standard for "Presentment"
8.3 A of the Virginia Code governs negotiable
instruments. Va Code. § 8.3A-101 et
seq. Under Title 8.3 A, a "person entitled to
enforce an instrument" may avail him or herself of
"Presentment." See Va. Code §
"Presentment" means a demand made by or on behalf
of a person entitled to enforce an instrument (i) to pay the
instrument made to the drawee or a party obliged to pay the
instrument or, in the case of a note or accepted draft
payable at a bank, to the ...