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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 12-CV-1382

                   RUFUS AND DELORES STANCIL, APPELLANTS,

                                         V.

       FIRST MOUNT VERNON INDUSTRIAL LOAN ASSOCIATION, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                (CAR-6061-11)

                         (Hon. John M. Mott, Trial Judge)

      (Submitted June 6, 2013                             Decided March 13, 2014)

      Harry T. Spikes, Sr. was on the brief for appellants.

      Thomas J. Kokolis was on the brief for appellee.

     Before BLACKBURNE-RIGSBY and MCLEESE, Associate Judges, and
NEBEKER, Senior Judge.

      Opinion for the court by Associate Judge MCLEESE.

      Dissenting opinion by Senior Judge NEBEKER at page 18.

      MCLEESE, Associate Judge: Appellants Rufus and Delores Stancil brought

this action against appellee First Mount Vernon Industrial Loan Association

(“FMV”). The Stancils initially sought to prevent FMV from foreclosing on a
                                         2

commercial property that the Stancils had purchased. After the trial court declined

to prevent a foreclosure sale, the Stancils sought to recover damages, claiming

among other things that FMV had made fraudulent misrepresentations and had

breached an oral agreement to forbear from foreclosure. The trial court granted

FMV‟s motion to dismiss the amended complaint for failure to state a claim, and

the Stancils appealed. We affirm in part and reverse in part.



                                         I.



      Because we are reviewing an order granting a motion to dismiss for failure

to state a claim, we take the facts as alleged in the complaint. Jordan Keys &

Jessamy, LLP v. St. Paul Fire & Marine Ins. Co., 870 A.2d 58, 62 (D.C. 2005).

According to the complaint, the Stancils borrowed $500,000 from FMV in April

2009 to purchase a property in the District of Columbia. The note executed in

connection with the transaction provided for an annual interest rate of 18% and a

default annual interest rate of 24%.



      After concluding that the Stancils were in default, FMV took steps to

foreclose on the property. In June 2011, however, the Stancils and FMV entered

into an oral contract pursuant to which the Stancils paid FMV $170,000 and FMV
                                          3

agreed to modify the terms of the note and to forbear from foreclosing on the

property. The $170,000 payment reflected a $100,000 charge for attorney‟s fees, a

$20,000 fee to FMV, and $50,000 payment as consideration for the forbearance

agreement. The $100,000 charge for attorney‟s fees related to a provision in the

note making the Stancils responsible, in the event of a default, for “all costs of

collections, including . . . attorney‟s fees of at least 20% of the outstanding

indebtedness . . . .”   Before the Stancils made the $170,000 payment, FMV

promised to reduce the forbearance agreement to writing, and the Stancils relied on

that promise in making the payment. Despite its promise, FMV failed to reduce

the forbearance agreement to writing. FMV later foreclosed on the property,

which was sold in January 2012.



      In pertinent part, the complaint raises the following claims: (1) fraudulent

misrepresentation with respect to the $100,000 charge for attorney‟s fees, because

there was no evidence that FMV incurred expenses for attorney‟s fees, and the “fee

was unnecessary, inappropriate, . . . not default service related[,] and . . . clearly

fraudulent . . . .”; (2) fraudulent misrepresentation with respect to the $50,000

payment for foreclosure forbearance, because FMV refused to acknowledge receipt

of the payment; (3) wrongful foreclosure, because the foreclosure violated various

statutory requirements and was a breach of the oral forbearance agreement; (4)
                                           4

breach of the oral forbearance agreement; and (5) fraudulent misrepresentation,

because FMV never intended to honor the oral forbearance agreement.1



         The trial court granted FMV‟s motion to dismiss the complaint for failure to

state a claim. As to the claim of fraudulent misrepresentation with respect to the

$100,000 charge for attorney‟s fees, the trial court concluded that the Stancils had

not identified any false statement upon which they had relied. As to the claim for

wrongful foreclosure, the trial court rejected the Stancils‟ statutory claims, which

the Stancils have not renewed on appeal. The trial court did not expressly address

the Stancils‟ claim that the foreclosure was wrongful because it violated the oral

forbearance agreement.2        As to the claim of breach of the oral forbearance

agreement, the trial court relied on the statute of frauds, D.C. Code § 28-3502

(2012 Repl.) (action may not be brought to enforce agreement concerning real

estate unless agreement is in writing). The trial court acknowledged that oral

agreements concerning real estate may in some circumstances be enforceable on

estoppel grounds, but saw no basis for estoppel in this case. Finally, with respect
         1
             The Stancils also raised other claims and theories that are no longer at
issue.
         2
            The claim of wrongful foreclosure based on the oral forbearance
agreement appears to be largely duplicative of the claim of breach of contract
resting on the same agreement. As we discuss infra, the trial court did address the
latter claim, concluding that the claim was barred by the statute of frauds.
                                           5

to the claims of fraudulent misrepresentation regarding the oral forbearance

agreement, the trial court relied on the parol-evidence rule, which precludes

introduction of “extrinsic or parol evidence which tends to contradict, vary, add to,

or subtract from the terms of a written contract . . . .” Segal Wholesale, Inc. v.

United Drug Serv., 933 A.2d 780, 783 (D.C. 2007) (internal quotation marks

omitted).



                                          II.



      This court reviews de novo the trial court‟s decision to dismiss a complaint

for failure to state a claim. See Jordan Keys & Jessamy, 870 A.2d at 62. We

accept the allegations in the complaint as true and view all facts and draw all

reasonable inferences in favor of the plaintiff. Id.



                                          A.



      We affirm the trial court‟s dismissal of the claim of fraudulent

misrepresentation as to the $100,000 charge for attorney‟s fees (count II). “To

prove a claim of fraudulent misrepresentation, [plaintiffs] must prove (1) a false

representation, (2) in reference to a material fact, (3) made with knowledge of its
                                          6

falsity, (4) with the intent to deceive, and (5) action taken by [the plaintiffs] in

reliance upon the representation, (6) which consequently resulted in provable

damages.” Railan v. Katyal, 766 A.2d 998, 1009 (D.C. 2001) (internal quotation

marks omitted). With respect to the charge for attorney‟s fees, the trial court

correctly concluded that the Stancils did not identify any fraudulent

misrepresentation upon which they detrimentally relied.        To the contrary, the

$100,000 charge was based on the express language of the note, which provides

that, in the event of a default, the Stancils would be responsible for “all costs of

collections, including . . . attorney‟s fees of at least 20% of the outstanding

indebtedness . . . .” We agree with the trial court that the complaint did not state a

claim of fraudulent misrepresentation with respect to attorney‟s fees. See, e.g.,

Schiff v. American Ass’n of Retired Persons, 697 A.2d 1193, 1198 (D.C. 1997)

(upholding dismissal of fraud claim, where complaint did not sufficiently allege

that defendant made false representation).



      On appeal, the Stancils suggest in passing that the fee provision is

unconscionable and that the note should not be interpreted to permit a charge for

attorney‟s fees that exceeds the actual amount of the attorney‟s fees incurred by
                                           7

FMV. The Stancils, however, do not brief those claims on the merits.3 Nor do the

Stancils address the question whether the complaint adequately raised those claims.

We therefore do not view those issues as properly before us.                 See, e.g.,

Arroyo-Torres v. Ponce Fed. Bank, 918 F.2d 276, 279 (1st Cir. 1990) (in

upholding dismissal of complaint, court declines to consider claims presented for

first time on appeal); Bardoff v. United States, 628 A.2d 86, 90 n.8 (D.C. 1993)

(issues raised in brief but not supported by argument are considered abandoned);

D.C. App. R. 28 (a)(8)(A) (2013) (appellant‟s brief must contain “appellant‟s

contentions and the reasons for them, with citations to the authorities and parts of

the record on which the appellant relies”).

      3
          Although the Stancils do not cite it, there is support for the suggestion that
FMV was not entitled to receive payment in excess of the fees actually incurred.
See F.D.I.C. v. Bender, 326 U.S. App. D.C. 390, 395-96, 127 F.3d 58, 63-64
(1997) (“Unlike some jurisdictions, which hold that a contractual provision for a
fixed percentage to be paid as attorneys‟ fees is enforced according to its
terms, . . . the D.C. Court of Appeals has long held . . . that in the District such
provisions are sustained „only as an indemnity for the reasonable fees necessarily
and properly paid or incurred,‟ . . . .”) (quoting United States v. Reed, 31 A.2d 673,
675 (D.C. 1942)); Richard A. Lord, 24 Williston on Contracts § 65.23, at 324-25
(4th ed. 2002) (“[I]f the amount [of a charge for attorney‟s fees stipulated in a note
or contract in the event of breach] is deemed to be penal, either because of its size,
or because the creditor was not compelled to pay an attorney the stipulated fee, the
provision will be held unenforceable as a penalty, and the creditor entitled, at most,
only to a reasonable fee actually paid by him or her.”) (footnotes omitted); cf.
District Cablevision Ltd. P’ship v. Bassin, 828 A.2d 714, 724 (D.C. 2003) (“For a
liquidated damages clause to be valid and enforceable, and not void as a penalty,
the common law insists that the liquidated damages must not be disproportionate to
the level of damages reasonably foreseeable at the time of the making of the
contract.”) (internal quotation marks omitted).
                                         8



      In any event, the complaint did not adequately allege any claim as to

attorney‟s fees other than fraudulent misrepresentation. The complaint did refer to

the attorney‟s fees as “unearned” and “inappropriate,” but there is no indication

that those references were meant to support discrete theories of liability beyond a

claim of fraudulent misrepresentation. In its motion to dismiss, FMV interpreted

the complaint as raising only a claim of fraudulent misrepresentation with respect

to attorney‟s fees. In opposing the motion to dismiss, the Stancils did not dispute

FMV‟s reading of the complaint, and in fact made no reference to the fees being

either “unearned” or “inappropriate.” Under the circumstances, we cannot fault the

trial court for interpreting the complaint as raising only a claim of fraudulent

misrepresentation with respect to attorney‟s fees. See, e.g., Iverson v. City of

Boston, 452 F.3d 94, 102-03 (1st Cir. 2006) (rejecting appellants‟ claim that trial

court erred by granting motion to dismiss without addressing alternative theory of

liability alleged in complaint; “District judges are not expected to be

clairvoyants[,] and [a passing reference in the complaint] was too inscrutable a

reference to state a . . . claim”; moreover, appellants failed to mention alternative

theory in opposing defendant‟s motion to dismiss, and that failure “defeats their

belated attempt to advance the theory on appeal”); see generally Bible Way Church

of Our Lord Jesus Christ v. Beards, 680 A.2d 419, 430 (D.C. 1996) (although
                                          9

complaint must be liberally construed, complaint may be dismissed if it fails to

give defendant notice of nature of claim).



                                         B.



      We reverse the trial court‟s dismissal of the complaint with respect to the

remaining counts at issue: fraudulent misrepresentation as to the $50,000 payment

relating to the forbearance agreement (count III); wrongful foreclosure based on

the breach of the forbearance agreement (count IV); breach of the forbearance

agreement (count V); and fraudulent misrepresentation with respect to the

forbearance agreement (count VI). The trial court dismissed these claims, which

overlap to a substantial degree, on two grounds: the parol-evidence rule and the

statute of frauds. We conclude that neither ground justifies dismissal.



                                          1.



      Under the District of Columbia‟s parol-evidence rule, terms “set forth in a

writing intended by the parties as a final expression of their agreement . . . may not

be contradicted by evidence of any prior agreement or of a contemporaneous oral

agreement[,] but may be explained or supplemented . . . .” D.C. Code § 28:2-202
                                          10

(2012 Repl.). The trial court relied on this rule to reject the Stancils‟ claim that

$50,000 of the payment they made to FMV was consideration for an oral

forbearance agreement. Specifically, the trial court viewed itself as “statutorily

obligated” to accept FMV‟s claim that the $50,000 payment was simply a payment

toward the amount still owed under the note. We disagree.



      The parol-evidence rule does not preclude proof of a subsequent oral

modification of a written contract, which is what the Stancils allege occurred in

this case. As this court has explained,



             [A] written contract may be orally modified or rescinded
             by a subsequent oral agreement, even where the contract
             contains     express    language      prohibiting      oral
             modification. . . . The justification for this rule is that
             the existence of an express bar against oral modification
             does not remove the parties‟ continuing rights to contract
             anew on the subject and to modify or rescind the oral
             modification provision like any other term of the
             contract.



Clark v. Clark, 535 A.2d 872, 876 (D.C. 1987). Thus, the parol-evidence rule

would not necessarily have barred proof of a subsequent oral modification of the

note in this case even if the note had required that modifications be in writing. In

any event, the note expressly refers to the possibility of modification, but does not
                                        11

require that modifications be in writing. The parol-evidence rule therefore did not

require the trial court to accept as true FMV‟s assertion that the $50,000 payment

was a payment toward principal rather than a payment made in connection with a

subsequent oral forbearance agreement.       To the contrary, for purposes of the

motion to dismiss, the trial court was required to accept as true the Stancils‟

assertion that the payment was made in connection with the oral forbearance

agreement. See Jordan Keys & Jessamy, 870 A.2d at 62.



                                        2.



      In dismissing the complaint, the trial court also relied on the statute of

frauds. “The statute of frauds mandates that certain agreements, including those

concerning real estate, must be in writing to guard against perjury and protect

against unfounded and fraudulent claims.” Railan, 766 A.2d at 1007 (internal

quotation marks omitted). See generally D.C. Code § 28-3502 (2012 Repl.). The

Stancils contend that FMV is estopped from invoking the statute of frauds, because

FMV promised that it would reduce the oral forbearance agreement to writing but

then did not fulfill that promise. See generally Railan, 766 A.2d at 1007-08

(“There are several situations where courts may refuse to allow the defendant to

interpose a statute of frauds defense . . .[, including] where his own fraud was
                                        12

responsible for the nonexistence of the required signed memorandum . . . .”)

(internal quotation marks omitted).



      The trial court rejected the Stancils‟ estoppel claim, explaining that FMV‟s

failure to honor the oral forbearance agreement would not by itself constitute the

kind of fraud giving rise to estoppel. The trial court appears to have overlooked a

critical aspect of the Stancils‟ argument: that FMV promised to reduce the oral

forbearance agreement to writing, that the Stancils relied on that promise in

making the $170,000 payment in connection with the forbearance agreement, and

that FMV fraudulently failed to reduce the forbearance agreement to writing. This

court‟s cases indicate that such conduct can, if proven, provide a basis for

estopping a party from invoking the statute of frauds. See generally, e.g., Railan,

766 A.2d at 1007-08.



      FMV argues that the Stancils‟ estoppel argument fails as a matter of law,

because the Stancils have not alleged that they detrimentally relied upon the oral

forbearance agreement.    We doubt the correctness of FMV‟s assumption that

detrimental reliance on the underlying oral agreement is generally required in cases

involving a fraudulent promise to reduce an oral agreement to writing. First, this

court has treated proof that the plaintiff detrimentally relied upon an oral
                                         13

agreement as an independent basis upon which a defendant can be estopped from

invoking the statute of frauds. Landow v. Georgetown-Inland W. Corp., 454 A.2d

310, 313 n.3 (D.C. 1982). Requiring proof of such detrimental reliance in the

category of cases involving a fraudulent promise to reduce an oral agreement to

writing would seemingly make that category of cases superfluous.



      Second, Railan did not hold that detrimental reliance on the underlying oral

agreement is a general prerequisite to estoppel in cases involving a fraudulent

promise to reduce an oral agreement to writing. To the contrary, the court said

without qualification that a defendant cannot invoke the statute of frauds if the

defendant‟s fraud is responsible for the non-existence of the required writing, and

did not say that in addition the plaintiff must prove that it detrimentally relied on

the underlying oral agreement. 766 A.2d at 1007-08.



      It is true that the court in Railan concluded that the defendant was not

estopped from invoking the statute of frauds, despite the plaintiff‟s allegation that

the defendant had promised to reduce an oral agreement to writing. 766 A.2d at

1007-09. That conclusion, however, turned on the particular circumstances of

Railan, rather than on a broad requirement that proof that the plaintiff
                                         14

detrimentally relied on the underlying agreement is always required in order for the

defendant to be estopped from relying on the statute of frauds.



      According to the plaintiff in Railan, (1) the parties reached an oral

agreement in connection with the defendant‟s purchase of a note from the bank

relating to the plaintiff‟s property; (2) a week after the purchase of the note, the

plaintiff took some handwritten notes concerning further details of the oral

agreement, but then discarded those notes the same day; (3) later that day, the

defendant indicated a willingness to reduce the oral agreement to writing; and (4)

even later that day, the defendant refused to reduce the oral agreement to writing.

766 A.2d at 1002-03, 1008-09. In rejecting the plaintiff‟s claim that the defendant

was estopped from invoking the statute of frauds, this court pointed out the

plaintiff had failed to show detrimental reliance on the underlying oral agreement.

766 A.2d 1009. The court also pointed out that the defendant‟s failure to reduce

the oral agreement to writing “would not make a difference as a matter of law,”

because the promise to reduce the oral agreement to writing occurred after the

underlying oral agreement and the purchase of the note at issue.            Id.   Put

differently, the court concluded that the record did not permit a finding that “fraud

was responsible for the non-existence of the required writing.” Id. Railan thus

does not foreclose the possibility that estoppel could be warranted even if
                                         15

detrimental reliance on the underlying oral agreement could not be shown. For

example, Railan does not address whether estoppel would be warranted if a

fraudulent promise to reduce an oral agreement to writing induced the plaintiff to

enter into the oral agreement in the first place, or if the defendant‟s fraudulent

promise to reduce the oral agreement to writing lulled the plaintiff into failing to

itself memorialize the oral agreement in writing.



      In any event, we need not decide whether proof of detrimental reliance on

the underlying oral agreement is required in cases involving a fraudulent promise

to reduce an oral agreement to writing. The Stancils alleged detrimental reliance in

their complaint, specifically claiming that they paid $170,000 to FMV in reliance

on the oral agreement to forbear. In its brief on appeal, FMV appears to suggest

that the $170,000 payment could not constitute detrimental reliance, because the

Stancils had defaulted and thus were already obliged under the note to make that

payment. The trial court did not address that issue. We view the issue as best left

for the trial court in the first instance on remand, particularly given that a proper

analysis of the issue might depend on the resolution of disputes between the parties

about the purpose and nature of the $170,000 payment.4

      4
        Courts in other jurisdictions appear to have taken varying approaches to
the question whether payments made as part of a forbearance agreement can
                                                                   (continued…)
                                        16

      Finally, FMV argues that the surviving fraudulent-misrepresentation counts

(counts III and VI) should be dismissed because the Stancils failed to allege the

elements of fraud. The trial court did not address that argument, and we decline to

decide it in the first instance. We do note, however, that FMV‟s argument is not

obviously correct. Although the Stancils‟ amended complaint is not entirely clear,

it adequately alleges that FMV agreed that if the Stancils paid $170,000 FMV

would forbear from foreclosing; that FMV also promised to reduce the forbearance

agreement to writing; that FMV intended all along to foreclose anyway and never

intended to reduce the forbearance agreement to writing; and that the Stancils paid

$170,000 to FMV in reliance upon FMV‟s promises. Such allegations, if proven,

arguably would make out a claim of fraudulent misrepresentation. See generally,

e.g., Virginia Acad. of Clinical Psychologists v. Group Hospitalization & Med.

(…continued)
constitute detrimental reliance. Compare, e.g., Odimbur v. Wells Fargo Bank, No.
CV 11-04581, 2012 WL 680057, at *4 (C.D. Cal. Mar. 1, 2012) (rejecting
defendant‟s motion to dismiss promissory-estoppel claim, where defendant
promised not to foreclose if plaintiff made certain installment payments on
mortgage), with Beck v. Wells Fargo Home Mortg., N.A., No. 10-CV-2150, 2010
WL 5340563, at *2 (S.D. Cal. Dec. 10, 2010) (holding plaintiff‟s alleged payment
of $6,000 to bank to defer foreclosure process could not constitute detrimental
reliance, because plaintiff was already required to make such payment under
mortgage agreement, and plaintiff conceded payment was not made to reinstate
loan); cf. Solomon v. Aurora Loan Servs. LLC, No. CIV. 2:12-209, 2012 WL
2577559, at *6 (E.D. Cal. July 3, 2012) (holding plaintiff sufficiently alleged
detrimental reliance, where plaintiff asserted that she could have paid arrearage to
reinstate her loan, but instead relied on defendant‟s promise that it would not
foreclose on plaintiff‟s property while loan-modification application was pending).
                                        17

Servs., Inc., 878 A.2d 1226, 1234 (D.C. 2005); cf. In re Estate of McKenney, 953

A.2d 336, 341 (D.C. 2008) (discussing contractual misrepresentation).



                                        3.



      For the foregoing reasons, we conclude that the trial court erred in granting

the motion to dismiss based on the parol-evidence rule and the statute of frauds.

We therefore reverse and remand for further proceedings with respect to the counts

alleging fraudulent misrepresentation as to the $50,000 payment relating to the

forbearance agreement (count III); wrongful foreclosure based on the breach of the

forbearance agreement (count IV);5 breach of the forbearance agreement (count V);

and fraudulent misrepresentation with respect to the forbearance agreement (count

VI). Moreover, for the reasons explained in Part II.A, we affirm the trial court‟s

dismissal of the claim of fraudulent misrepresentation as to the $100,000 charge

for attorney‟s fees (count II).



                                             So ordered.

      5
         As previously noted, the Stancils have not challenged on appeal the trial
court‟s dismissal of their claims that the foreclosure was wrongful on statutory
grounds. We therefore leave that ruling undisturbed, and remand on count IV only
with respect to the claim of wrongful foreclosure based on the forbearance
agreement.
                                          18

      NEBEKER, Senior Judge, concurring in part and dissenting in part: I would

affirm the judgment and not reform the litigation into an action not contemplated

by the parties or the trial court. While I join the majority opinion as to count II, I

respectfully dissent from my colleagues‟ decision to remand counts III, IV, V, and

VI. I believe a remand is unnecessary, because the Stancils failed to state a claim

for fraudulent misrepresentation or breach of an oral contract, and it would be

futile to afford them a second opportunity to do so. The majority seems to believe

that, by allowing the Stancils a second try at pleading their case, it is serving

broader, undefined principles of equity. But the Stancils did not ask the trial court

for leave to amend, nor did they ask this court for a remand to allow such

amendment. The majority goes out of its way to relieve the Stancils of their failure

— relief for which they have not asked. In doing so, it effectively sacrifices this

court‟s role as a neutral arbiter on the altar of the ever-variable concept of fairness.

What the Stancils deem fair surely is not so viewed by FMV, which will now have

the additional burden and expense of further litigation imposed by this court. In

sum, the majority licenses the Stancils to recast their failed attempt to state a

cognizable claim; an approach incompatible with efficient judicial administration:


             In our jurisprudential system, trial and appellate
             processes are synchronized in contemplation that review
             will normally be confined to matters appropriately
             submitted for determination in the court of first
             resort. Questions not properly raised and preserved
                                         19

            during the proceedings under examination, and points not
            asserted with sufficient precision to indicate distinctly the
            party‟s thesis, will normally be spurned on
            appeal. Canons of this tenor reflect, not obeisance to
            ritual, but considerations of fairness to the court and the
            parties and of the public interest in bringing litigation to
            an end after fair opportunity has been afforded to present
            all issues of law and fact. The injunction that trial
            ventilation precede appellate exploration best subserves
            that policy without appreciable imposition upon the
            litigants. It requires them to deal fairly and frankly with
            each other and with the trial tribunal with respect to their
            controversies. It prevents the trial of cases piecemeal or
            in installment. It tends to put an end to litigation. We
            think that sound judicial administration embraces
            importantly the elimination of expenditures of time and
            energy — by parties as well as courts — incidental to
            potentially unnecessary appeals.


Miller v. Avirom, 127 U.S. App. D.C. 367, 369-70, 384 F.2d 319, 321-22 (1967)

(footnotes and internal quotation marks omitted).



      In their complaint, the Stancils failed to plead fraud with the requisite

particularity, as they did not allege any detrimental reliance on FMV‟s alleged

misrepresentations. To make out a fraudulent-misrepresentation claim, a plaintiff

must allege, among other things, “„reliance . . . which consequently resulted in

provable damages.‟” Railan v. Katyal, 766 A.2d 998, 1009 (D.C. 2001) (quoting

Dresser v. Sunderland Apartments Tenants Ass’n, Inc., 465 A.2d 835, 839 (D.C.

1983)); accord Kitt v. Capital Concerts, Inc., 742 A.2d 856, 861 (D.C. 1999)
                                         20

(“[T]he plaintiff must show that „provable damages‟ resulted from the fraud.”

(quoting Dresser, supra)). The Stancils alleged, in conclusory fashion, that they

relied on FMV‟s alleged misrepresentations, but failed to specify what that reliance

entailed. Accordingly, they failed to plead adequately their fraud claims. See

Atraqchi v. GUMC Unified Billing Servs., 788 A.2d 559, 563 (D.C. 2002) (“„Fraud

is never presumed and must be particularly pleaded.‟” (quoting Bennett v. Kiggins,

377 A.2d 57, 59-60 (D.C. 1977))).



      Remand is unnecessary because the Stancils cannot cure this deficiency.

Although “leave to amend is almost always allowed to cure deficiencies in

pleading fraud,” Washkoviak v. Student Loan Mktg. Ass’n, 849 A.2d 37, 39 (D.C.

2004), a court is not required to grant leave to amend when the plaintiff will not be

able to repair its defective pleading. See, e.g., United States ex rel. Raynor v.

National Rural Utils. Coop. Fin., Corp., 690 F.3d 951, 958 (8th Cir. 2012)

(“[F]utility constitutes a valid reason for denial of a motion to amend.” (quoting

Knapp v. Hanson, 183 F.3d 786, 790 (8th Cir. 1999))); Hadley v. BNC Mortg.,

Inc., 466 Fed. Appx. 612, 613 (9th Cir. 2012) (“The district court did not abuse its

discretion by dismissing without leave to amend where amendment would be

futile.”); In re Interbank Funding Corp. Sec. Litig., 393 U.S. App. D.C. 415, 420,

629 F.3d 213, 218 (2010) (“[A] district court may properly deny a motion to
                                          21

amend if the amended pleading would not survive a motion to dismiss.”); 5A

CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE §

1300 (3d ed. 2013) (“Leave to replead will be denied, however, when the district

court believes that it would be futile . . . .”); cf. Floyd v. Bank of Am., 70 A.3d 246

(D.C. 2013) (affirming trial court‟s dismissal of complaint on the alternative

ground that plaintiffs failed to state a legally-cognizable claim, even though the

trial court dismissed for lack of standing and never reached that issue). And here,

granting leave to amend would be an exercise in futility, as the Stancils cannot

allege they detrimentally relied on FMV‟s misrepresentations.



      Specifically, the Stancils alleged that FMV made two misrepresentations:

(1) that, in exchange for $50,000, it would not foreclose on their investment

property; and (2) that it would reduce this agreement to writing. But the Stancils

cannot claim they suffered any detriment as a result of either misrepresentation, as

neither left them in a worse position than they would have been had FMV done

nothing at all. See BLACK‟S LAW DICTIONARY 1404 (9th ed. 2009) (defining

“detrimental reliance” as “[r]eliance by one party on the acts or representations of

another, causing a worsening of the first party‟s position”).         First, that they

ultimately faced foreclosure cannot be a legal detriment, as FMV had a right to

foreclose before it made any representation. Thus, FMV‟s alleged promise left
                                        22

them in no worse position than when they started. Nor can the Stancils claim

detrimental reliance based on their $50,000 payment. The performance of an

obligation already owed is not a legal detriment. See, e.g., Conrad v. Bank of Am.,

53 Cal. Rptr. 2d 336, 352 (Cal. Ct. App. 1996) (holding that plaintiffs‟ execution

of a new assignment-of-proceeds agreement — in reliance on Bank‟s alleged

promise to lend additional money — was not detrimental because “the Bank‟s

existing security agreement and assignment of proceeds entitled the Bank to the

proceeds of [the sale] so long as it was owed money by [the plaintiffs]”). Under

the note‟s terms, the Stancils owed FMV $500,000 — which their default rendered

immediately due.    Accordingly, their payment was nothing more than partial

performance of their preexisting contractual duties. This, in itself, is not a legal

detriment.



      For a similar reason, the Stancils cannot make out a valid breach-of-contract

claim. In the absence of a qualifying writing, the Statute of Frauds leaves real-

property agreements unenforceable. Mark Keshishian & Sons, Inc. v. Washington

Square, Inc., 414 A.2d 834, 840 (D.C. 1980). We have recognized an estoppel

exception to the Statute “where [the defendant‟s] own fraud was responsible for

the non-existence of the required signed memorandum.” Railan, supra, 766 A.2d

at 1007-08 (quoting Hackney v. Morelite Constr., 418 A.2d 1062, 1066 (D.C.
                                        23

1980)).   But the Stancils do not qualify for this exception because, as just

discussed, they cannot allege that FMV committed fraud.



      Accordingly, rather than remand, I would affirm the trial court‟s order on all

counts.
