                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

GILDA MALEK,

                       Plaintiff,
                                                           Civil Action No. 13-01597 (BAH)
                       v.
                                                           Judge Beryl A. Howell
FLAGSTAR BANK,

                       Defendant.


                                    MEMORANDUM OPINION

       The plaintiff, Gilda Malek, filed this action against the defendant Flagstar Bank, a

federally chartered savings bank, to challenge the recording of a deed of trust that was executed

by the plaintiff’s husband in exchange for a $500,000 loan secured by the couple’s house. See

generally Compl., ECF No. 1. The defendant has moved, under Federal Rule of Civil Procedure

12(b)(6), to dismiss the Complaint for failure to state a claim. See Def.’s Mot. to Dismiss (Def.’s

Mot.), ECF No. 6. For the reasons explained below, the defendant’s motion is denied in part and

granted in part.

I.     BACKGROUND

       On March 15, 2000, the plaintiff and her husband, Farshied Malek (“Mr. Malek”),

acquired fee simple title by deed as tenants by the entireties to their house, which is located at

4836 Van Ness Street, N.W., Washington, D.C. Compl. ¶¶ 6-7, ECF No. 1-1; Def.’s Mot., Ex. A

(Residential Property Deed, dated March 15, 2000) at 1, ECF No. 6-2. Five years later, on

November 15, 2005, Mr. Malek obtained from the defendant a $500,000 Home Equity Line of

Credit (“Home Equity Loan”), with an initial advance of $200,000 and a ten year repayment

period. Compl. ¶ 8; Def.’s Mot., Ex. B (Home Equity Line of Credit Agreement), ECF No. 6-3.


                                                 1
 
To secure this loan, Mr. Malek executed a “Credit Line Deed of Trust” (“Deed of Trust”) for the

benefit of the defendant that encumbered the couple’s house. Compl. ¶ 8; Def.’s Mot., Ex. C

(Credit Line Deed of Trust), ECF No. 6-4. The parties do not dispute that the plaintiff did not

execute the Home Equity Loan, the Deed of Trust, or any other document in connection with the

loan made by the defendant to the plaintiff’s spouse. Compl. ¶ 10; see generally Def.’s Mot., Ex.

C.

              On November 28, 2005, the defendant recorded the Deed of Trust with the Office of the

Recorder of Deeds of the District of Columbia. Compl. ¶¶ 9–10. Almost eight years later and

about two years before repayment of of the Home Equity Loan was due in full, the plaintiff filed

suit, on July 18, 2013, against the defendant asserting three claims: (1) that the Deed of Trust

should be declared invalid (“Count I”), id. ¶¶ 11-12; (2) fraud (“Count II”), id. ¶¶ 13-17; and (3)

negligence (“Count III), id. ¶¶ 18-20. The case was originally filed in the Superior Court of the

District of Columbia and subsequently removed to this Court based on diversity jurisdiction.1

See Notice of Removal, ECF No. 1. Shortly thereafter, the defendant filed the pending motion to

dismiss the Complaint with prejudice.

II.           LEGAL STANDARDS

              Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short and

plain statement of the claim showing that the pleader is entitled to relief,” to encourage brevity

and, at the same time, “give the defendant fair notice of what the . . . claim is and the grounds

                                                            
1
  The Court has diversity jurisdiction over this case, pursuant to 28 U.S.C. § 1332, since the plaintiff “resides at
4836 Van Ness Street, Washington, D.C. 20016” and is a citizen of the District of Columbia; the defendant is a
“federally chartered savings bank with its principal place of business in Troy, Michigan;” and the amount in
controversy exceeds the $75,000 threshold based upon the plaintiff’s demand for judgment “in the amount of
$1,000,000, plus attorneys’ fees, interest and costs,” and the Credit Line Deed of Trust at issue amounts to $500,000.
See Notice of Removal ¶¶ 5, 6, 8; Busby v. Capital One, N.A., 932 F. Supp. 2d 114, 132-133 (D.D.C. 2013) (“the
amount in controversy is equal to the amount of the loan”); Duma v. JPMorgan Chase, 828 F. Supp. 2d 83, 86
(D.D.C. 2011) aff’d sub nom. Duma v. JPMorgan Chase & Co., 11-7147, 2012 WL 1450548 (D.C. Cir. Apr. 20,
2012) (amount in controversy assessed by the amount of the deed of trust). 

                                                               2
 
upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (ellipses in

original; internal quotations and citations omitted); Tellabs, Inc. v. Makor Issues & Rights, Ltd.,

551 U.S. 308, 319 (2007). The Supreme Court has cautioned that although “Rule 8 marks a

notable and generous departure from the hyper-technical, code-pleading regime of a prior era, []

it does not unlock the doors of discovery for a plaintiff armed with nothing more than

conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). To survive a motion to dismiss

under Federal Rule of Civil Procedure 12(b)(6), the “complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.” Wood v. Moss,

134 S. Ct. 2056, 2067 (2014) (quoting Iqbal, 556 U.S. at 678). A claim is facially plausible

when the plaintiff pleads factual content that is more than “merely consistent with a defendant’s

liability,” but 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 557); see also Rudder v. Williams,

666 F.3d 790, 794 (D.C. Cir. 2012). Although “detailed factual allegations” are not required to

withstand a Rule 12(b)(6) motion, a complaint must offer “more than labels and conclusions” or

“formulaic recitation of the elements of a cause of action” to provide “grounds” of “entitle[ment]

to relief,” Twombly, 550 U.S. at 555 (alteration in original), and “nudge[ ] [the] claims across

the line from conceivable to plausible,” id. at 570. Thus, “a complaint [does not] suffice if it

tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 557).

       In considering a motion to dismiss for failure to plead a claim on which relief can be

granted, the court must consider the complaint in its entirety, accepting all factual allegations in

the complaint as true, even if doubtful in fact. Twombly, 550 U.S. at 555-56; Sissel v. United

States Dep’t of Health and Human Servs., No. 13-5202, 2014 U.S. App. LEXIS 14397, at *7



                                                  3
 
(D.C. Cir. June 29, 2014) (in considering a Rule 12(b)(6) motion, the “court assumes the truth of

all well-pleaded factual allegations in the complaint and construes reasonable inferences from

those allegations in the plaintiff’s favor, but is not required to accept the plaintiff’s legal

conclusions as correct”) (internal quotations and citations omitted). In addition, courts may

“ordinarily examine” other sources “when ruling on Rule 12(b)(6) motions to dismiss, in

particular, documents incorporated into the complaint by reference, and matters of which a court

may take judicial notice.” Tellabs, 551 U.S. at 322 (citing 5B Wright & Miller § 1357 (3d ed.

2004 and Supp. 2007)).

III.    DISCUSSION

        The plaintiff filed this action for a declaratory judgment that the Deed of Trust executed

by the defendant is invalid. Compl. ¶¶ 11-12. In addition, the plaintiff alleges that she is owed

damages in excess of $1,000,000 because of the defendant’s fraudulent, id. ¶¶ 13-17, and

negligent, id. ¶¶ 18-20, conduct in allegedly wrongfully recording the Deed of Trust. The

defendant counters that all three claims “must be dismissed pursuant to Rule 12(b)(6) for failure

to state a claim” because the plaintiff’s “claims are devoid of any supporting factual allegations

and do not state any legally cognizable claim against [the defendant].” Def.’s Mem. Supp. Mot.

to Dismiss (“Def.’s Mem.”) at 1. The Court evaluates the sufficiency of the factual allegations

underlying each of the plaintiff’s claims seriatim below.

        A.      Count I For Declaratory Judgment

        In Count I, the plaintiff seeks a declaratory judgment, pursuant to D.C. Superior Court

Rule of Civil Procedure (“D.C. SCR-Civil Rule”) 57, “that the Deed of Trust is invalid because

the House encumbered by the Deed of Trust is owned by [the plaintiff] as a tenant by the




                                                   4
 
entirety, and [the plaintiff] did not execute the Deed of Trust.” 2 Compl. ¶¶ 11-12. The

defendant seeks to dismiss this claim because a declaratory judgment is a type of relief and

cannot form the basis for a separate cause of action. See Def.’s Mem. at 4.

              D.C. SCR-Civil Rule 57, pertaining to declaratory judgments, is substantially identical to

Federal Rule of Civil Procedure 57 and provides, in pertinent part, that “[t]he procedure for

obtaining a declaratory judgment pursuant to Title 28 U.S.C. § 2201 or otherwise shall be in

accordance with these Rules.” The use of the phrase “or otherwise” in this local procedural rule

is intended to include “authority for issuance of declaratory judgments founded on Congressional

grant to the Superior Court of general equity powers,” but “like any other remedy,” a declaratory

judgment “may only be granted in cases properly within the court’s jurisdiction.” D.C. Sup. Ct.

R. 57 cmt. The Declaratory Judgment Act, 28 U.S.C. § 2201, in turn, authorizes federal courts to

grant declaratory relief as a remedy and is not, standing alone, a cause of action.3 As the

defendant correctly notes, “a count for a declaratory judgment ‘is not cognizable as a separate

cause of action, but is more properly included in the [ ] prayer for relief.’” Def.’s Mem. at 4

(quoting Intelsat USA Sales Corp. v. Juch-Tech, Inc., 935 F. Supp. 2d 101, 120 (D.D.C. 2013)

(citing Walpin v. Corp. for Nat. & Cmty. Serv., 718 F. Supp. 2d 18, 24 (D.D.C. 2010)); Def.’s

Reply Supp. Mot. Dismiss (“Def.’s Reply”) at 1 (same); see also C&E Servs., Inc. of Washington

v. D.C. Water & Sewer Auth., 310 F.3d 197, 201 (D.C. Cir. 2002) (“the Declaratory Judgment

Act ‘is not an independent source of federal jurisdiction’” but only “presupposes the existence of

a judicially remediable right.” (quoting Schilling v. Rogers, 363 U.S. 666, 677 (1960)).

                                                            
2
   The Complaint cites to Superior Rule of Civil Procedure 55 rather than 57. Compl. ¶ 12. The plaintiff has
clarified her intent to refer to Rule 57. Def.’s Mem. at 4; Pl.’s Opp’n to Def.’s Mot. to Dismiss (“Pl.’s Opp’n”) at 3
(“[c]learly [p]laintiff intended to invoke Rule 57 and the relevant citation is a typographical error”).    
3
   The Declaratory Judgment Act provides, in pertinent part, that “[i]n a case of actual controversy within its
jurisdiction . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and
other legal relations of any interested party seeking such declaration, whether or not further relief is or could be
sought.” 28 U.S.C. § 2201(a). 

                                                               5
 
       The plaintiff concedes that her “request for declaratory relief may be stylistically

deficient, [but] it is sufficient to put the Defendant on notice of the relief sought and the basis for

the relief.” Pl.’s Opp’n to Def.’s Mot. to Dismiss (“Pl.’s Opp’n”) at 4. The relief requested in

Count I is “that the Court enter an order declaring that the Deed of Trust is invalid because the

House encumbered by the Deed of Trust is owned by [the plaintiff] as a tenant by the entirety,

and Plaintiff did not execute the Deed of Trust.” Compl. ¶ 12. The plaintiff explains that Count

I is requesting “the Court to declare the lien on the property, arising from the defendant’s loan,

vacated.” Pl.’s Opp’n at 3. In other words, the plaintiff seeks to remove a cloud upon the title to

her house to which she and her husband hold fee simple title, Compl. ¶ 6, which title has been

encumbered since 2005 by the defendant’s execution and recording of the Deed of Trust, id. ¶¶

8-9. Thus, in essence, Count I seeks a declaratory judgment to quiet title, and the Court

construes this claim as invoking the Court’s equitable jurisdiction to resolve the parties’ interests

in the plaintiff’s house. “The Supreme Court has held that the power to quiet title is inherent in

every court of equity.” In re Tyree, 493 A.2d 314, 317 (D.C. 1985); see also Diaby v. Bierman,

795 F. Supp. 2d 108, 111 (D.D.C. 2011) (“Courts may hear a common law action to quiet title to

prove title, secure title, ‘or to remove obstacles which hinder its enjoyment.’”) (quoting Sharon

v. Tucker, 144 U.S. 533, 544 (1892)); Black’s Law Dictionary 34 (9th ed. 2009) (defining an

“action to quiet title” as a “proceeding to establish a plaintiff’s title to land by compelling the

adverse claimant to establish a claim or be forever estopped from asserting it”).

       Under District of Columbia law, “an action to quiet title may not be dismissed for failure

to state a claim when the complaint alleges,” as the plaintiff has in this case, that she is an

“owner[] of the land in fee simple,” and another party has asserted an interest in the property. In

re Tyree, 493 A.2d at 317 (citing Goodman v. Wren, 34 App. D.C. 516, 519-20 (D.C. Cir. 1910);



                                                   6
 
District of Columbia v. Hufty, 13 App. D.C. 175, 177 (D.C. Cir. 1898) (“It has been held that an

allegation that one is seized in fee simple is a sufficient allegation of possession to maintain a bill

to remove cloud.”) (citations omitted).

       The plaintiff further alleges that she and her husband “own the House as tenants by the

entireties.” Compl. ¶ 7. “Many jurisdictions have abolished the tenancy by the entireties” but

“the District of Columbia still recognizes [this form of ownership] ‘with most of its common law

features still intact.’” Morrison v. Potter, 764 A.2d 234, 236 (D.C. 2000) (citing In re Wall’s

Estate, 440 F.2d 215, 218 (1971)). When spouses are tenants by the entireties, “each spouse is

entitled to the enjoyment and benefits of the whole property held by the entireties.” Id. Property

held by tenants by the entireties is subject to the spouses’ joint debts as well as individual debts

of the surviving co-tenant but “it is unreachable by creditors of one but not of both of the

tenants.” Morrison, 764 A.2d at 237; see In re Wall’s Estate, 440 F.2d at 220 (finding that

“absent a different treatment by the [appellees], they held the sale proceeds as tenants by the

entireties in prolongation of their preexisting co-tenancy in the realty, and held it free from the

claims of separate creditors of either”); Cunningham, The Law of Property § 5.5, at 206 n. 19

(“one spouse alone cannot convey, encumber, or subject to the satisfaction of creditors’ claims

either that spouse’s possessory estate for the joint lives of the co-tenants or that spouse’s

contingent right of survivorship”). A mortgage entered into by one spouse that purports to be

secured by property owned by the couple, as tenants by the entirety, is void because it was not

executed by both spouses and creates a cloud upon the title to the property. See 78 A.L.R. 24

(Originally published in 1932) (collecting cases).

       The plaintiff alleges that she is a tenant by the entirety but executed no documents in

connection with the loan taken from the defendant by her husband. See Compl. ¶¶ 10, 12. This



                                                  7
 
allegation is bolstered by documents submitted by the defendant to support its motion to dismiss.

Specifically, the deed to the house states clearly that the plaintiff and her husband hold the house

in fee simple as tenants by the entireties, see Def.’s Mot, Ex. A, but the Home Equity Loan and

Deed of Trust are signed only by the plaintiff’s spouse, see Def.’s Mot., Ex. B-C.4 These factual

allegations, corroborated by the documents at issue, sufficiently set out a valid claim to quiet title

action since the Deed of Trust, on its face and without resorting to extrinsic evidence, appears to

give the defendant a property interest in the plaintiff’s house. See Graves v. Ashburn, 215 U.S.

331, 335 (1909) (“It is enough [to sustain a quiet title action] that the invalidity [of the

challenged instrument] does not appear upon its face, but rests partly on a matter in pais.”);

Wilson v. Moseley, 488 S.E.2d 862, 864 (S.C. 1997) (“[a] cloud on title is a claim which on its

face appears valid, but resort to extrinsic evidence will show its invalidity”) (internal quotation

marks omitted); see also 65 Am. Jur. 2d Quieting Title § 16 (“Generally, a cloud on title is

created by an invalid or inoperative instrument . . . if the invalidity is not apparent on its face,

and will not be revealed in the evidence required to support it, but must be proved by extrinsic

evidence.”). Thus, the defendant’s motion to dismiss Count I for failure to state a claim is

denied.

              B.             Count II For Fraud

              The defendant has also moved to dismiss the plaintiff’s fraud claim, in Count II, for

failure to “allege with sufficient specificity the essential elements of fraud.” Def.’s Mem. at 5.
                                                            
4
  The Court may consider these documents attached to the defendant’s motion papers without converting the motion
to dismiss into a motion for summary judgment since the plaintiff references the same documents in the Complaint.
See Compl. ¶¶ 6, 9, 19; EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997) (any
documents incorporated by reference in the complaint may be considered under Rule 12(b)(6)); Cause of Action v.
Nat’l Archives & Records Admin., 926 F. Supp. 2d 182, 184-185 (D.D.C. 2013) (“Documents that are referenced in,
or are an integral part of, the complaint are deemed not 'outside the pleadings’ for purposes of a motion to dismiss
for failure to state a claim.”) (internal quotations and citations omitted); Vanover. V. Hantman, 77 F. Supp. 2d 91, 98
(D.D.C. 1999) (“When reviewing a motion under Fed. R. Civ. P. 12(b)(6) . . . [w]here a document is referred to in
the complaint and is central to plaintiff’s claim, such a document attached to the motion papers may be considered
without converting the motion to one for summary judgment.”).

                                                               8
 
To withstand a motion to dismiss for failure to state a fraud claim, the plaintiff must meet the

pleading standard set out in Federal Rule of Civil Procedure 9(b), which provides that “a party

must state with particularity the circumstances constituting fraud or mistake.” FED. R. CIV. P.

9(b). As this rule makes clear, fraud “‘is never presumed and must be particularly pleaded.’”

Lee v. Bos, 874 F. Supp. 2d 3, 5 (D.D.C. 2012) (quoting Bennett v. Kiggins, 377 A.2d 57, 59

(D.C. 1977), cert. denied, 434 U.S. 1034 (1978)). This heightened pleading standard is designed

to “discourage[] the initiation of suits brought solely for their nuisance value, and safeguard[]

potential defendants from frivolous accusations of moral turpitude,” as well as “guarantee all

defendants sufficient information to allow for preparation of a response.” United States ex rel.

Williams v. Martin–Baker Aircraft Co., 389 F.3d 1251, 1256 (D.C. Cir. 2004).

       The plaintiff must plead with sufficient particularity the following elements for a viable

fraud claim: “‘(1) a false representation, (2) in reference to a material fact, (3) made with

knowledge of its falsity, (4) with the intent to deceive, and (5) action . . . taken in reliance upon

the representation.’” Lee, 874 F. Supp. 2d at 5-6 (quoting Bennett, 377 A.2d at 59); McCarthy v.

Cahill, 249 F. Supp. 194, 196 (D.D.C. 1966). Thus, a plaintiff “must allege with particularity

matters such as the time, location and content of the alleged misrepresentations . . . [and]

misrepresented facts.” Lee, 874 F. Supp. 2d at 6; see also Busby v. Capital One, N.A., 932 F.

Supp. 2d 114, 139 (D.D.C. 2013) (holding that the complaint did not satisfy the pleading

standard of Rule 9(b) because it failed to please the “who, what, when, where, and how”

circumstances surrounding the alleged fraud). Finally, “[t]o prevail, the plaintiff must also have

suffered some injury as a consequence of his reliance on the misrepresentation.” Chedick v.

Nash, 151 F.3d 1077, 1081 (D.C. Cir. 1998) (citing Dresser v. Sunderland Apartments Tenants

Ass’n, Inc., 465 A.2d 835, 839 (D.C. 1983)).



                                                  9
 
       In support of her fraud claim, the plaintiff alleges that: (1) “[the defendant] knew upon

recording the Deed of Trust that [the plaintiff] did not execute the Deed of Trust or any other

document in connection with the [Home Equity] Loan,” id. ¶ 14; (2) “[the defendant’s] act(s) in

recording the Deed of Trust were willful and malicious,” id. ¶ 15; (3) “[r]ecording the Deed of

Trust as if [the plaintiff] had executed the necessary documents constitutes a fraud upon [the

plaintiff],” id. ¶ 16; and (4) “[a]s a direct and proximate result of [the defendant’s] fraudulent

act(s), [the plaintiff] has suffered consequential damages, economic, and non-economic loss, all

to her detriment in the amount of $1,000,000.00,” id. ¶ 17. The defendant contends that these

statements are conclusory and thus, “are not entitled to an assumption of truth.” Def.’s Mem. at

6. Indeed, the defendant is correct that the plaintiff “does not identify one single statement made

[] to her by [the defendant], much less any false representation . . . [n]or does [the plaintiff]

allege that [the defendant] intended to deceive her . . . ” Def.’s Mem. at 6; see Ashcroft v. Iqbal,

556 U.S. 662, 679 (“[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.”); Kaempe v. Myers, 367 F.3d 958, 963 (D.C. Cir. 2004) (stating that when

reviewing a dismissal for failure to state a claim, the court will not accept “legal conclusions cast

in the form of factual allegations”) (citations omitted).

       To the extent the plaintiff’s fraud claim boils down to the contention that the defendant’s

execution and recordation of the Deed of Trust amounts to a false representation to the plaintiff,

the plaintiff has nonetheless wholly failed to allege the critical element for a common law fraud

claim of her reasonable reliance to her detriment on the defendant’s conduct. See Def.’s Mem. at

6 (noting that plaintiff failed to plead “that she reasonably relied on any such

misrepresentation”); Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 22



                                                  10
 
(D.C. Cir. 2008) (finding that “we need not discuss the adequacy of [the plaintiff’s] allegations

of fraud because [the plaintiff] utterly fails to allege . . . the element of reliance” and “[a]

plaintiff may recover for a defendant’s fraudulent statement only if the plaintiff took some action

in reliance on that statement”); Virginia Acad. of Clinical Psychologists v. Grp. Hospitalization

& Med. Servs., Inc., 878 A.2d 1226, 1237 (D.C. 2005) (“A further requirement for fraud is that

action be taken in reliance upon the misrepresentation.”). Accordingly, the plaintiff’s fraud

claim is dismissed, without prejudice, for failure to state a claim.5

              C.             Count III For Negligence

              Finally, the defendant argues that the plaintiff has failed to state a claim for negligence

because she has not alleged “that [the defendant] owed her any legal duty of care—let alone how

[the defendant] breached any such duty or proximately caused her damages.” Def.’s Mem. at 7.

The plaintiff, on the other hand, contends that “[t]he very lack of a relationship is the basis for

Plaintiff’s negligence claim.” Pl.’s Opp’n at 5.

              To establish a negligence claim, “under D.C. law, ‘a plaintiff must prove a duty of care

owed by the defendant to the plaintiff, a breach of that duty by the defendant, and damage to the

interests of the plaintiff, proximately caused by the breach.’” Sigmund v. Starwood Urban Retail

VI, LLC, 617 F.3d 512, 514 (D.C. Cir. 2010) (quoting District of Columbia v. Beretta, U.S.A.,

Corp., 872 A.2d 633, 642 n. 3 (D.C. 2005). “Whether a duty exists is a question of law for the

Court.” Findlay v. CitiMortgage, Inc., 813 F. Supp. 2d 108, 120 (D.D.C. 2011) (citing

Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 793 (D.C. 2011)). The Complaint alleges


                                                            
5
 The defendant urges the Court to dismiss with prejudice because granting leave to amend would be futile. See
Def.’s Mem. at 6-7. The plaintiff, on the other hand, requests that “if the Court finds that Plaintiff’s Complaint falls
short of the standard” under Federal Rules of Civil Procedure 9(b) and 12(b)(6), that the Court grant leave to amend.
See Pl.’s Opp’n at 6. The sparse and conclusory nature of the allegations supporting the fraud claim make it
impossible to determine whether granting leave to amend would be futile. Consequently, Count II is dismissed
without prejudice.

                                                               11
 
that “[the defendant] was negligent in that it knew or, through the exercise of due diligence,

should have known, that [the plaintiff] did not execute the Deed of Trust or any other document

in connection with the [Home Equity] Loan.” Compl. ¶ 19. The plaintiff posits in her

opposition that “extend[ing] a loan that purports to bind [the plaintiff] co-owner of the property

at issue, without obtaining the signature of [the plaintiff] borrower, or exercising due diligence in

investigating the lack of signature or, for that matter, the presence of [the plaintiff] borrower at

closing” was negligent. Pl.’s Opp’n at 5.

       The key documents cited in the Complaint and submitted by the defendant in support for

its motion, corroborate the plaintiff’s contention that the defendant should have known that the

property was held in fee simple by the plaintiff and her spouse, as tenants by the entirety, as

plainly reflected in the Deed to the house, see Def.’s Mot., Ex. A, and that the plaintiff never

signed the Home Equity Loan or the Deed of Trust between Mr. Malek and the defendant, the

recording of which documents now encumbers title to the house, see Def.’s Mot., Ex. B-C.

Nonetheless, the defendant argues that, since the plaintiff was not a party to these agreements

between the defendant and her spouse, the plaintiff has not established or alleged how the

defendant could owe a “duty to non-customers with whom it has no direct relationship.” Def.’s

Reply at 3 (citing Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220, 225 (4th Cir. 2002) (“a bank

does not owe a duty of care to a noncustomer with whom the bank has no direct relationship”)).

       The plaintiff does not dispute that she “did not enter into a relationship” with the

defendant by choice but, contrary to the defendant’s position, she contends this is not fatal to her

claim. The defendant fails to appreciate that the gravamen of the negligence claim is that the

defendant’s negligent conduct created a relationship between the plaintiff and the defendant. See

Pl.’s Opp’n at 6 (“Defendant created a relationship [with the plaintiff] when it recorded the Deed



                                                  12
 
of Trust encumbering Plaintiff’s property.”). In other words, assuming, arguendo, that the Deed

of Trust validly encumbers the title to the plaintiff’s house, the defendant has created a

relationship with the plaintiff by making the plaintiff’s interest in her own house subject to the

defendant’s interest in the same property.

              Even if the plaintiff’s theory were cognizable that the defendant was negligent in placing

an invalid encumbrance on her house, the plaintiff has utterly failed to provide any factual

allegations about how, over the past eight years, she suffered any damages, let alone damages in

the amount of $1,000,000, as a proximate cause of the defendant’s breach of any duty owed to

her, even assuming such a duty existed. This is a clear missing element of the plaintiff’s

negligence claim that requires dismissal, without prejudice, of Count III 6

       IV. CONCLUSION

              Accordingly, the defendant’s motion to dismiss the complaint, pursuant to Federal Rule

12(b)(6) for failure to state a claim, is denied as to plaintiff’s declaratory judgment claim to quiet

title (Count I), and granted as to the plaintiff’s claims for fraud (Count II) and negligence (Count

III), which two counts are dismissed without prejudice.

              An Order consistent with this Memorandum Opinion will be contemporaneously entered.


                                                                                      Digitally signed by Hon. Beryl A. Howell
              Date: September 29, 2014                                                DN: cn=Hon. Beryl A. Howell, o=U.S.
                                                                                      District Court for the District of Columbia,
                                                                                      ou=United States District Court Judge,
                                                                                      email=Howell_Chambers@dcd.uscourts.
                                                                                      gov, c=US
                                                                                      Date: 2014.09.29 16:30:39 -04'00'
                                                                    __________________________
                                                                    BERYL A. HOWELL
                                                                    United States District Judge



                                                            
6
  Indeed, if the plaintiff is correct that the Deed of Trust is invalid, then, ironically, it is the defendant, not the
plaintiff, who may face harm because the security for the Home Equity Loan will be compromised. See Kay v.
Fowler, 587 F. Supp. 720, 723 (D.D.C. 1984) (where lender made loan to husband. with forged signature of wife,
lender “could not reach the real property owned by [husband and plaintiff wife] because it was owned by them as
tenants by the entireties” (citing In re Estate of Wall, 440 F.2d at 215 (1971)).

                                                               13
 
