United States District Court, D. Maryland
CLARENCE V. DAVIS, et al., Plaintiffs,
BANK OF AMERICA, N.A., Defendant.
L. Hollander United States District Judge
Clarence and Beverly Davis filed a two-count Complaint
against defendant Bank of America, N.A. (“BANA”
or the “Bank”), alleging negligence and fraud in
connection with their home mortgage loan. ECF 3
(“Complaint”). In Count One, plaintiffs assert that
BANA “negligently serviced” the loan by changing
its terms without plaintiffs' knowledge or consent,
resulting in “the collection of excess monies” by
the Bank. Id. ¶ 19. Count Two alleges that BANA
“fraudulently serviced” plaintiffs' loan, by
“altering the loan terms, without authorization or
right.” Id. Plaintiffs submitted five exhibits
with the Complaint. ECF 3-1 to ECF 3-5.
has moved to dismiss for failure to state a claim, pursuant
to Fed.R.Civ.P. 8(a), 9(b), and 12(b)(6). ECF 16. The motion
is supported by a memorandum of law. ECF 16-1 (collectively,
the “Motion”). Plaintiffs oppose the Motion. ECF
17 (“Opposition”). And, plaintiffs submitted several
documents with the Opposition. See Id. at 9-17.
Defendant has replied. ECF 18 (“Reply”).
hearing is necessary to resolve the matter. See
Local Rule 105(6). For the reasons that follow, I shall grant
the Motion in part and deny it in part. ECF 16.
dispute centers on a “Home Refinance Agreement”
pertaining to plaintiffs' home on Hammaker Street in
Thurmont, Maryland. ECF 3, ¶ 1. On February 16, 1999,
plaintiffs executed a Home Refinance Agreement (the
“Agreement”) with NationsBank, N.A.
(“NB”), in the amount of $119, 721.50.
Id. ¶ 2; see ECF 3-2
(“Promissory Note”). The loan was secured by a
Deed of Trust, which was duly recorded in the land records
for Frederick County, Maryland. ECF 3, ¶ 3; see
ECF 3-1 (“Deed of Trust”).
terms of the loan provided for 179 monthly payments of $1,
202.76, beginning on April 2, 1999, with a final payment due
on March 2, 2014, in the amount of $1, 202.31. ECF 3,
¶¶ 4, 7; see also ECF 3-2. Payments were
due the second of each month. ECF 3-2 at 1. Pursuant to the
Federal Truth-in-Lending Disclosure included in the
Promissory Note, plaintiffs would repay the lender a total of
$216, 496.35, of which $85, 294.81 represented finance
charges. ECF 3, ¶ 6; see ECF 3-2 at 1.
about 1998, NB merged with BANA. ECF 3, ¶ 8. As a
result, BANA became the servicer of plaintiffs' loan.
Id. According to plaintiffs, BANA
“altered” the terms of plaintiffs' loan
“without [their] request, authorization, consent, or
even . . . knowledge[.]” Id. ¶ 9. When
plaintiffs contacted BANA regarding their mortgage, they were
told that the loan “was a [sic] interest only
obligation, in direct contradiction of the loan
papers[.]” Id. ¶ 10. Further, although
BANA stated that it would assign a loan counselor to
plaintiffs to address their concerns, plaintiffs were instead
“passed through numerous customer services
representatives, ” who, they allege, had “no real
intention of correcting the matter.” Id.
Statement Summary indicates that plaintiffs have a principal
balance of $119, 545.95 on the loan. Id. ¶ 12;
see ECF 3-3 (“2017 Statement Summary”).
According to plaintiffs, the principal balance is only
$167.55 less than the original loan balance in 1999. ECF 3,
¶ 13. Yet, plaintiffs allege that since the origination
of the loan in 1999, they have paid “approximately
$145, 624.52 in interest, ” which they assert amounts
to a “$60, 392.00 overpayment” in interest, as
compared to the interest amount set forth under the
loan's original terms. Id. ¶¶ 14, 15.
Further, plaintiffs allege that they are “forced to
continue” making payments “or risk placing their
home into foreclosure.” Id. ¶ 16.
about February 9, 2017, plaintiffs, through counsel, raised
their concerns with the Bank's Customer Service
Department and requested an accounting. Id. ¶
17; ECF 3-5 (“BANA Customer Service Request”). On
July 19, 2017, BANA acknowledged plaintiffs' inquiry but
stated that it needed additional time to research the matter.
ECF 3, ¶ 18; ECF 3-5.
lawsuit followed on December 4, 2018. ECF 1.
Standard of Review
defendant may test the legal sufficiency of a complaint by
way of a motion to dismiss under Rule 12(b)(6). In re
Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines
v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th
Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393,
408 (4th Cir. 2010), aff'd sub nom.,
McBurney v. Young, 569 U.S. 221 (2013); Edwards
v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).
A Rule 12(b)(6) motion constitutes an assertion by a
defendant that, even if the facts alleged by a plaintiff are
true, the complaint fails as a matter of law “to state
a claim upon which relief can be granted.”
a complaint states a claim for relief is assessed by
reference to the pleading requirements of Fed.R.Civ.P.
8(a)(2). That rule provides that a complaint must contain a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” The purpose of the
rule is to provide the defendants with “fair
notice” of the claims and the “grounds” for
entitlement to relief. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555-56 (2007).
survive a motion under Fed.R.Civ.P. 12(b)(6), a complaint
must contain facts sufficient to “state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. at 570; see Ashcroft v.
Iqbal, 556 U.S. 662, 684 (2009) (citation omitted)
(“Our decision in Twombly expounded the
pleading standard for ‘all civil actions' . . .
.”); see also Paradise Wire & Cable Defined
Benefit Pension Plan v. Weil, 918 F.3d 312, 317 (4th
Cir. 2019); Willner v. Dimon, 849 F.3d 93, 112 (4th
Cir. 2017). To be sure, a plaintiff need not include
“detailed factual allegations” in order to
satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555.
Moreover, federal pleading rules “do not countenance
dismissal of a complaint for imperfect statement of the legal
theory supporting the claim asserted.” Johnson v.
City of Shelby, Miss., 574 U.S. 10, 10 (2014) (per
curiam). But, mere “‘naked assertions' of
wrongdoing” are generally insufficient to state a claim
for relief. Francis v. Giacomelli, 588 F.3d 186, 193
(4th Cir. 2009) (citation omitted).
other words, the rule demands more than bald accusations or
mere speculation. Twombly, 550 U.S. at 555; see
Painter's Mill Grille, LLC v. Brown, 716 F.3d 342,
350 (4th Cir. 2013). If a complaint provides no more than
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action, ” it
is insufficient. Twombly, 550 U.S. at 555.
“[A]n unadorned, the-defendant-unlawfully-harmed-me
accusation” does not state a plausible claim of relief.
Iqbal, 556 U.S. at 678. Rather, to satisfy the
minimal requirements of Rule 8(a)(2), the complaint must set
forth “enough factual matter (taken as true) to
suggest” a cognizable cause of action, “even if .
. . [the] actual proof of those facts is improbable and . . .
recovery is very remote and unlikely.”
Twombly, 550 U.S. at 556 (internal quotation marks
reviewing a Rule 12(b)(6) motion, a court “must accept
as true all of the factual allegations contained in the
complaint” and must “draw all reasonable
inferences [from those facts] in favor of the
plaintiff.” E.I. du Pont de Nemours & Co. v.
Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)
(citations omitted); see Semenova v. MTA, 845 F.3d
564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs.,
Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v.
Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert.
denied, 565 U.S. 943 (2011). But, a court is not
required to accept legal conclusions drawn from the facts.
See Papasan v. Allain, 478 U.S. 265, 286 (1986);
Glassman v. Arlington Cty., 628 F.3d 140, 146 (4th
Cir. 2010). “A court decides whether [the pleading]
standard is met by separating the legal conclusions from the
factual allegations, assuming the truth of only the factual
allegations, and then determining whether those allegations
allow the court to reasonably infer” that the plaintiff
is entitled to the legal remedy sought. A Society Without
a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011),
cert. denied, 566 U.S. 937 (2012).
ordinarily do not “‘resolve contests surrounding
the facts, the merits of a claim, or the applicability of
defenses'” through a Rule 12(b)(6) motion.
Edwards, 178 F.3d at 243 (quoting Republican
Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)).
However, “in the relatively rare circumstances where
facts sufficient to rule on an affirmative defense are
alleged in the complaint, the defense may be reached by a
motion to dismiss filed under Rule 12(b)(6).”
Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th
Cir. 2007) (en banc); accord Pressley v. Tupperware Long
Term Disability Plan, 553 F.3d 334, 336 (4th Cir. 2009).
Because Rule 12(b)(6) “is intended [only] to test the
legal adequacy of the complaint, ” Richmond,
Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d
244, 250 (4th Cir. 1993), “[t]his principle only
applies . . . if all facts necessary to the affirmative
defense ‘clearly appear[ ] on the face of the
complaint.'” Goodman, 494 F.3d at 464
(quoting Forst, 4 F.3d at 250) (emphasis added in
when a defendant moves to dismiss a complaint under Rule
12(b)(6), courts are limited to considering the sufficiency
of allegations set forth in the complaint and the
‘documents attached or incorporated into the
complaint.'” Zak v. Chelsea Therapeutics
Int'l, Ltd., 780 F.3d 597, 606 (4th Cir. 2015)
(quoting E.I. du Pont de Nemours & Co., 637 F.3d
at 448). Ordinarily, the court “may not consider any
documents that are outside of the complaint, or not expressly
incorporated therein . . . .” Clatterbuck v. City
of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013);
see Bosiger v. U.S. Airways, Inc., 510 F.3d 442, 450
(4th Cir. 2007).
under limited circumstances, when resolving a Rule 12(b)(6)
motion, a court may consider documents beyond the complaint
without converting the motion to dismiss to one for summary
judgment. Goldfarb v. Mayor & City Council of
Balt., 791 F.3d 500, 508 (4th Cir. 2015). In particular,
a court may properly consider documents that are
“explicitly incorporated into the complaint by
reference and those attached to the complaint as
exhibits.” Goines, 822 F.3d at 166 (citation
omitted); see also Six v. Generations Fed. Credit
Union, 891 F.3d 508, 512 (4th Cir. 2018); Anand v.
Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir.
2014); U.S. ex rel. Oberg v. Pa. Higher Educ. Assistance
Agency, 745 F.3d 131, 136 (4th Cir. 2014); Am.
Chiropractic Ass'n v. Trigon Healthcare,
Inc., 367 F.3d 212, 234 (4th Cir. 2004), cert.
denied, 543 U.S. 979 (2004); Phillips v. LCI
Int'l Inc., 190 F.3d 609, 618 (4th Cir. 1999).
“before treating the contents of an attached or
incorporated document as true, the district court should
consider the nature of the document and why the plaintiff
attached it.” Goines, 822 F.3d at 167 (citing
N. Ind. Gun & Outdoor Shows, Inc. v. City of S.
Bend, 163 F.3d 449, 455 (7th Cir. 1998)). Of import
here, “[w]hen the plaintiff attaches or incorporates a
document upon which his claim is based, or when the complaint
otherwise shows that the plaintiff has adopted the contents
of the document, crediting the document over conflicting
allegations in the complaint is proper.”
Goines, 822 F.3d at 167. Conversely, “where
the plaintiff attaches or incorporates a document for
purposes other than the truthfulness of the document, it is
inappropriate to treat the contents of that document as
may also “consider a document submitted by the movant
that [is] not attached to or expressly incorporated in a
complaint, so long as the document was integral to the
complaint and there is no dispute about the document's
authenticity.” Goines, 822 F.3d at 166
(citations omitted); see also Woods v. City of
Greensboro, 855 F.3d 639, 642 (4th Cir. 2017), cert.
denied, __U.S. __, 138 S.Ct. 558 (2017); Oberg,
745 F.3d at 136; Kensington Volunteer Fire Dep't. v.
Montgomery Cty., 684 F.3d 462, 467 (4th Cir. 2012). To
be “integral, ” a document must be one
“that by its ‘very existence, and not the
mere information it contains, gives rise to the legal
rights asserted.'” Chesapeake Bay Found., Inc.
v. Severstal Sparrows Point, LLC, 794 F.Supp.2d 602, ...