                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA
________________________________
                                 )
ADRIENNE SMITH,                  )
                                  )
                Plaintiff,       )
                                  )
                v.                ) Civil Action No. 13-706 (EGS)
                                 )
MIDLAND MORTGAGE, et al.,        )
                                  )
                Defendants.      )
                                 )

                          MEMORANDUM OPINION

     Plaintiff Adrienne Smith filed this lawsuit on May 14, 2013

against defendants Midland Mortgage, Kenneth Clark, MidFirst

Bank, Mortgage Electronic Registration Systems (“MERS”), and

First Preference Mortgage (“First Preference”). Pending before

the Court are motions to dismiss filed by Midland Mortgage,

Kenneth Clark, MidFirst Bank, and MERS. Upon consideration of

the motions, the plaintiff’s response, the entire record, and

the applicable law, the Court GRANTS the motions to dismiss

filed by Kenneth Clark, Midland Mortgage, and MERS; GRANTS IN

PART AND DENIES IN PART the motion to dismiss filed by MidFirst

Bank; and, sua sponte, REMANDS this case to the Superior Court

of the District of Columbia.

I.     BACKGROUND

     On July 14, 2003, plaintiff obtained from defendant First

Preference a home mortgage loan for $252,988.00 on the property
located at 1301 Taylor Street, NW in Washington D.C. See Pl.’s

Opp. to Mots. to Dismiss (“Opp.”), ECF No. 17 at 3; Deed, ECF

No. 15-1 at 1; Note, ECF No. 15-2 at 1.1 Ms. Smith was to make

monthly payments of $1,397.01 in principal and interest as well

as additional payments for taxes and insurance. See Note, ECF

No. 15-2 at 1; Deed, ECF No. 15-1 at 3. If plaintiff’s payment

was not received within fifteen days of its due date, she could

be charged a late fee. See Note, ECF No. 15-2 at 2.

    Plaintiff’s mortgage was initially serviced by First Horizon

Mortgage Company, which is not a party to this action. Plaintiff

became frustrated because the company failed to “keep[] her

mortgage account serviced accurately and correctly,” increased

her mortgage payment at various times, and accused her of

submitting late and partial payments. See Opp. at 3. On June 13,

2008, First Horizon notified plaintiff that her loan would now

be serviced by Midland Mortgage, a division of MidFirst Bank.

See Letter, ECF No. 17-1 at 57; Midland Mot., ECF No. 12 at 1.

    Plaintiff alleges that she experienced loan-servicing issues

with MidFirst Bank as well. These issues related to late-payment

notices and corresponding late fees she received from 2009–2013.

See Opp. at 4–5; Exhibits, ECF No. 17-1 at 1, 32, 62–73, 75–77,

1
  The Court considers the mortgage Note and Deed, which were
attached to MERS’s motion, as “‘documents . . . incorporated in
the complaint.’” Haynes v. Navy Fed. Credit Union, 825 F. Supp.
2d 285, 288 n.2 (D.D.C. 2011) (quoting EEOC v. St. Francis
Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)).
                                 2
81, 83–84, 86–88, 90, 94–95, 97–100. Plaintiff acknowledges that

some of these payments were late, but claims that others were

not. See Opp. at 5. This, plaintiff asserts, is in “conflict

with [the] terms of a deed set by First Preference.” Id.2

    Plaintiff also alleges that the defendants have twice

attempted to foreclose on her property. First, she claims that

in February 2013 the defendants “provided multiple false

certifications . . . and claims to the D.C. Banking and

Insurance Department and removed Plaintiff’s name from her

Deed.” Compl. at 4. After she paid her January and February 2013

mortgage payments, plaintiff claims that the D.C. Banking and

Insurance Department “rejected and cancelled the first

foreclosure package due to arrears numbers that did not add up.”

Id. At this point, defendants allegedly “resubmitted false

information to the agency to open a second foreclosure now in

effect.” Id. Plaintiff, however, appears to concede that no

foreclosure is actually pending, Opp. at 2, and may have

misunderstood the meaning of an April 17, 2013 notice from

Midland Mortgage, which informed her that if she did not pay the

amount necessary to bring her loan current by May 17, 2013, “you

. . . may lose your home through foreclosure.” April 17, 2013

Letter, ECF No. 3-1 at 8.


2
  Plaintiff attributes these issues to “racial targeting and loan
discrimination,” but never elaborates. See Compl. at 2.
                                 3
  Plaintiff filed this lawsuit on May 14, 2013. The following

day, she moved for a temporary restraining order and a

preliminary injunction, asking the Court to enjoin a pending

foreclosure. See Mot. for TRO, ECF No. 3 at 1. Judge Lamberth

denied the motion for a temporary restraining order on May 16,

2013, noting that “no foreclosure proceedings have even been

initiated at this time.” Order, ECF No. 4 at 1. After receiving

defendants’ opposition to the request for a preliminary

injunction, this Court denied that request and held that

“plaintiff has not alleged that foreclosure proceedings have

commenced on her property.” Order, ECF No. 9 at 3.

  Four of the five defendants moved to dismiss in September

2013. The fifth, First Preference, has not entered an appearance

in the case. On September 18, 2013, the Court issued an Order

advising plaintiff of her obligation to respond to the

defendants’ motions and the consequences of failing to do so.

See Order, ECF No. 16. Plaintiff filed her opposition brief on

October 31, 2013 and filed a supplemental brief on January 10,

2014. See Opp.; Notice, ECF No. 18. The motions to dismiss are

now ripe for the Court’s decision.

  II.   STANDARD OF REVIEW

  A motion to dismiss under Rule 12(b)(6) tests the legal

sufficiency of the complaint. Browning v. Clinton, 292 F.3d 235,

242 (D.C. Cir. 2002). To be viable, a complaint must contain “a

                                4
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)

(quotation marks omitted; alteration in original). The plaintiff

need not plead all of the elements of a prima facie case in the

complaint, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511–14

(2002), nor must the plaintiff plead facts or law that match

every element of a legal theory. Krieger v. Fadely, 211 F.3d

134, 136 (D.C. Cir. 2000). Despite this liberal standard, a

complaint still “must contain sufficient factual matter,

accepted as true, to state a claim for relief that is plausible

on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quotation marks omitted).

  “‘[W]hen ruling on a defendant’s motion to dismiss, a judge

must accept as true all of the factual allegations contained in

the complaint.’” Atherton v. D.C. Office of Mayor, 567 F.3d 672,

681 (D.C. Cir. 2009) (quoting Erickson v. Pardus, 551 U.S. 89,

94 (2007)). The court must give the plaintiff “the benefit of

all inferences that can be derived from the facts alleged.”

Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir.

1994). Nevertheless, a court “need not accept inferences drawn

by plaintiff[] if such inferences are unsupported by the facts

set out in the complaint.” Id. Further, “[t]hreadbare recitals

                                5
of elements of a cause of action, supported by mere conclusory

statements” are not sufficient to state a claim. Iqbal, 556 U.S.

at 678. Although a pro se complaint “must be held to less

stringent standards than formal pleadings drafted by lawyers,”

Erickson, 551 U.S. at 94 (quotation marks omitted), it too “must

plead ‘factual matter’ that permits the court to infer ‘more

than the mere possibility of misconduct.’” Atherton, 567 F.3d at

681–82 (quoting Iqbal, 556 U.S. at 679).

III. ANALYSIS

  A. Plaintiff’s Claims Against Kenneth Clark, MERS, and Midland
     Mortgage.

  The Court will dismiss plaintiff’s claims against defendants

Clark, MERS, and Midland Mortgage. Mr. Clark is mentioned in the

Complaint only in connection with plaintiff’s description of

attempts to contact him regarding her loan-servicing issues. See

Compl. at 2, 3, 6; Opp. at 7. Mr. Clark rightly argues that he

may be “personally liable for torts which [he] commit[ted],

participate[d] in, or inspire[d],” Lawlor v. District of

Columbia, 758 A.2d 964, 974 (D.C. 2000), but the Complaint

alleges no such action. See Clark Mot., ECF No. 10. MERS

similarly is mentioned only in passing, without any description

of an action that could subject it to liability. See Compl. at

3, 4–5; Opp. at 6. Midland Mortgage is discussed throughout

plaintiff’s pleadings, but plaintiff has not controverted its


                                6
assertion that it is merely a division of MidFirst Bank and thus

is not subject to a separate lawsuit. See Midland Mot., ECF No.

12 at 2–3. In the absence of any reason to doubt it, the Court

credits Midland Mortgage’s assertion. Accordingly, the Court

will dismiss Mr. Clark, MERS, and Midland Mortgage.

  B. Plaintiff’s Claims Against MidFirst Bank.

  Plaintiff’s complaint makes more detailed allegations

regarding MidFirst Bank, but provides no clear description of

any legal claims she intends to raise. At times, she makes vague

references to broad legal claims, but these are never explained.

See, e.g., Opp. at 2 (“Plaintiff’s claims are applicable under

United States Civil Rights statutes, Fair Lending and Credit

with Federal Regulatory Agency Authority including Housing and

Urban Development (HUD) and the Consumer Financial Protection

Bureau (CFPB)”). This lack of specificity makes it difficult for

plaintiff to meet the requirements of Federal Rule of Civil

Procedure 8(a), which requires that a complaint contain “a short

and plain statement of the claim showing that the pleader is

entitled to relief” as well as “a demand for the relief sought.”

  Under this standard, a complaint must “ensure that the adverse

party is reasonably informed of the asserted causes of action

such that he can file a responsive answer and prepare an

adequate defense.” McCarter v. Bank of New York, 873 F. Supp. 2d

246, 249 (D.D.C. 2012). Though this standard is liberal, a

                                7
complaint that is a “confused and rambling narrative of charges

and conclusions” or an “untidy assortment of claims that are

neither plainly nor concisely stated” must be dismissed. Poblete

v. Goldberg, 680 F. Supp. 2d 18, 19 (D.D.C. 2009) (quotation

marks omitted). A liberal reading of plaintiff’s complaint

reveals possible claims for wrongful foreclosure and breach of

contract.3

      1.     Plaintiff Fails to State a Claim for Wrongful
             Foreclosure.

    The only relief plaintiff requested in the Complaint was “that

the Court dismiss the foreclosure complaint” and “that my Deed

[be] returned to me.” Compl. at 6. These requests suggest that

plaintiff intended to raise a claim for wrongful foreclosure.

Indeed, that is the only claim that MidFirst Bank discerns from

her pleadings. See MidFirst Mot., ECF No. 11 at 1. MidFirst Bank

argues that the claim must be dismissed because plaintiff failed

to allege that a foreclosure has taken place. See id. The Court


3
  Plaintiff’s other allegations form only a “confused and
rambling narrative of charges and conclusions.” Id. Her
conclusory allegation of “racial targeting and loan
discrimination,” Compl. at 2, cannot alone state a legal claim.
Her request for “an explanation why First Preference steered her
to” her previous loan servicer, which she claims was “shown to
be racially biased against African-Americans,” is similarly
unelaborated. See Opp. at 1, 4. Nor did plaintiff explain how
defendants may be liable for the allegedly harassing mail that
was sent to her home. See Compl. at 4–5; Opp. at 6. Finally,
although plaintiff invokes the term “fraud” repeatedly, she
never “state[s] with particularity the circumstances
constituting fraud.” Fed. R. Civ. P. 9(b).
                                   8
agrees. This Court has already held that plaintiff failed to

allege that any foreclosure has taken place and defendants have

made clear “that they have not commenced foreclosure

proceedings.” Order, ECF No. 9 at 3. Plaintiff appeared to

concede this in her response to the motions to dismiss, Opp. at

2, and appears to have misunderstood a notice from Midland

Mortgage, which stated that failing to bring her loan current

may result in foreclosure. See supra at 3. Giving plaintiff “the

benefit of all reasonable inferences,” Aktieselskabet AF 21.

November 2001 v. Fame Jeans, 525 F.3d 8, 17 (D.C. Cir. 2008)

(quotation marks omitted), it is not clear how her claim may

persist. The absence of a foreclosure proceeding, moreover,

renders moot the relief requested in plaintiff’s complaint.4

      2.   Plaintiff Arguably Alleges a Breach of Contract.

    Plaintiff’s Complaint also may raise a claim for breach of

contract. Throughout her pleadings, she references MidFirst

Bank’s alleged failure to credit her for timely mortgage

payments and its imposition of late fees. See Compl. at 2–3, 5;

Opp. at 2, 5. Plaintiff attached to her opposition various late-

payment letters from 2009–2013. See Exhibits, ECF No. 17-1 at 1,

32, 62–73, 75–77, 81, 83–84, 86–88, 90, 94–95, 97–100. She

claimed that at least some of the letters were false, and seemed

4
  For these reasons, even though defendant First Preference has
not appeared in this case, plaintiff’s wrongful-foreclosure
claim against it will be dismissed, sua sponte.
                                 9
to allege that MidFirst Bank’s imposition of late fees in

connection with these letters “conflict[s] with [the] terms of a

deed set by First Preference.” Opp. at 5. Accordingly, plaintiff

arguably raises a breach-of-contract claim in her pleadings.

    MidFirst Bank did not address these allegations in its motion

to dismiss, believing that the Complaint cannot be read to raise

any claim other than wrongful foreclose because it “provides no

reasonable notice as to any other cause of action.” MidFirst

Mot., ECF No. 11 at 3. The Court declines to address whether

plaintiff’s breach-of-contract allegations provide sufficient

notice of her claim, however, because this Court lacks

jurisdiction to do so. Plaintiff’s Complaint contains no federal

causes of action to support jurisdiction under 28 U.S.C. § 1331,

and there is no basis to infer that the amount in controversy is

sufficient to support jurisdiction under 28 U.S.C. § 1332.

    Having dismissed plaintiff’s wrongful-foreclosure claim, the

Court is left solely with plaintiff’s apparent dispute over late

fees she claims were unlawfully imposed. Even if all late fees

mentioned in her exhibits were at issue, that would amount to

approximately $1,000.5 It thus “appear[s] to a legal certainty


5
  Even if the entire amount plaintiff owes to bring her mortgage
current were at issue, that amount appears to be around $10,000.
See Compl. at 6 (asserting that plaintiff received a letter
“saying that I must pay $10,000 . . . by May 15th”); April 4,
2013 Letter from MidFirst Bank, ECF No. 17-1 at 101 (asserting
that plaintiff was in default in the amount of $8,818.64).
                                 10
that the claim is really for less than the jurisdictional

amount.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S.

283, 289 (1938); see also Rosenboro v. Kim, 994 F.2d 13, 17

(D.C. Cir. 1993) (a court must “be very confident that a party

cannot recover the jurisdictional amount before dismissing the

case for want of jurisdiction”). For this reason, the Court

lacks jurisdiction over the putative breach-of-contract claim.6

    IV.   CONCLUSION

    For the foregoing reasons, the Court GRANTS the motions to

dismiss defendants Kenneth Clark, Midland Mortgage, and MERS

from this case, and GRANTS IN PART AND DENIES IN PART MidFirst

Bank’s motion to dismiss. In addition, the Court, sua sponte,

DISMISSES plaintiff’s wrongful-foreclosure claim against

defendant First Preference. Finally, the Court, sua sponte,

REMANDS this case to the Superior Court of the District of

Columbia. An appropriate Order accompanies this Memorandum

Opinion.

    SO ORDERED.

Signed:     Emmet G. Sullivan
            United States District Judge
            June 19, 2014




6
  The Court declines to exercise supplemental jurisdiction over
the claim because it “has dismissed all claims over which it has
original jurisdiction.” 28 U.S.C. § 1367(c).
                                 11
