Ali v. Mid-Atlantic Settlement Services, Inc., Civil Action No. 02-2271 (RWR).

• Decision Date: 17 July 2009
• Docket Number: Civil Action No. 02-2271 (RWR).
• Citation: 640 F.Supp.2d 1
• Parties: Betty Gene ALI, Plaintiff, v. MID-ATLANTIC SETTLEMENT SERVICES, INC. et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 1

640 F.Supp.2d 1

Betty Gene ALI, Plaintiff, v. MID-ATLANTIC SETTLEMENT SERVICES, INC. et al., Defendants.

Civil Action No. 02-2271 (RWR).

United States District Court, District of Columbia.

July 17, 2009.

COPYRIGHT MATERIAL OMITTED

Thomas C. Willcox, Washington, DC, for Plaintiff.

David E. Ralph, Holbrook, MD, Michael S. Steadman, Jr., Peter Frederick Axelrad, Council, Baradel, Kosmerl & Noland, P.A., Annapolis, MD, Pamela Anne Bresnahan, Elizabeth Treubert Simon, Vorys, Sater, Seymour and Pease LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION

RICHARD W. ROBERTS, District Judge.

Plaintiff Betty Gene Ali filed this lawsuit against multiple defendants alleging that she was the victim of a scheme to defraud her of the equity in property she owned in the District of Columbia. Defendants Richard Tolbert and Anthony Noble move for summary judgment. While initial developments in this litigation cast the defendants' conduct in a troubling light,¹ Ali does not show the existence of a genuine issue of material fact, and the defendants are entitled to summary judgment as a matter of law.

BACKGROUND

Ali inherited a house located in Washington, D.C. following the death of her parents. (See Defendant Anthony Noble's Statement of Material Facts ("Noble's Stmt. of Facts") ¶ 1; Pl.'s Resp. to Noble's Stmt. of Material Facts ("Pl.'s Resp to Noble") ¶ 1.) Ali began trying to sell the house in 1999. She listed the property for $299,000, but was unsuccessful. A realtor suggested re-pricing the property at a price between $250,000 and $280,000. (Pl.'s Resp. to Tolbert's Stmt. of Undisp. Facts ("Pl.'s Resp. To Tolbert") ¶¶ 8-9.) In early 2000, Ali obtained a mortgage loan on the house for approximately $100,000. (Pl.'s Resp. to Noble ¶ 4.) By July 2000, she owed approximately $105,000 on her mortgage, and she was delinquent by approximately $11,000. Ali was facing foreclosure, and claims she was being harassed by people in the neighborhood. (Pl.'s Am. Compl. ("Am. Compl.") ¶ 13; Pl.'s Resp. to Noble ¶ 7.)

In July 2000, Ali attempted to refinance her mortgage through a company named EZ Mortgage. However, because Ali had refinanced the house within the previous six months, EZ Mortgage would not approve her second refinancing. (Pl.'s Resp. to Noble ¶¶ 9-10.)

While Ali was leaving EZ Mortgage's offices, she encountered Tolbert, a junior high school classmate of hers who was an advertising consultant for EZ Mortgage. (Pl.'s Resp. to Noble ¶ 11; Pl.'s Resp. to Tolbert ¶ 10.) Ali asked Tolbert whether he could convince EZ Mortgage to approve her request to refinance her loan. Tolbert responded that he was not able to do that. (Pl.'s Resp. to Noble ¶ 12.) She called him more than once asking if he wanted to buy the house. (Pl.'s Resp. to Tolbert ¶ 15.) Later, Tolbert contacted Ali and informed her that Noble was willing to pay $150,000 to purchase the house. (Noble's Stmt. of Facts ¶ 15; Pl.'s Resp. to Noble ¶ 15.) Ali alleges that Tolbert knew that Ali "faced foreclosure and harassment . . . and [was] aware she had limited education and knowledge of options such as renegotiating the loan with her lender," and thus "forced" Ali to accept Noble's $150,000 offer on the property. (Am. Compl. ¶ 16.)

On August 3, 2000, Ali entered into a contract to sell the property to Noble for $150,000. On the same date, Ali also signed an addendum to the contract binding her to pay six percent of the sales contract price to the purchaser to be applied to closing costs, and stating that "[b]oth parties realize property is facing foreclosure. Property is sold below market value to prevent foreclosure sale." (Pl.'s Resp. to Tolbert ¶ 17; Tolbert's Mem. in Support of Mot. for Summ. J. ("Tolbert's Mem.") Ex. 8 (Contract of Sale and Addendum); Noble's Mem. in Support of Mot. for Summ. J. ("Noble's Mem.") Ex. 3 at 2.) In return, Noble agreed to accept the property in "as is" condition. (Pl.'s Resp. to Tolbert ¶ 17.) On August 9, 2000, Noble paid $11,404.53 to Riggs Bank, in order to bring Ali's mortgage current on her house. (Pl.'s Resp. to Noble ¶ 18.)

On November 21, 2000, Ali appeared at the offices of Mid-Atlantic Settlement Services ("Mid-Atlantic") to close the sale of her house. The closing was conducted by Richard Perry, an employee of Mid-Atlantic, and Tolbert was also present. Noble was not present, and Ali claims to have never met Noble before then. (Pl.'s Resp. to Noble ¶¶ 23-24; Am. Compl. ¶¶ 20-23.) At the closing, Ali signed an HUD-1 settlement sheet that identified the seller as Ali, the purchaser as Noble, and a purchase price of $150,000. The HUD-1 also stated that Noble was paying Ali $199.22 for prepaid taxes, making a preliminary amount due to Ali of $150,199.22. (Am. Compl. ¶¶ 23-24; Compl. Ex. B (HUD-1) at 1.) The HUD-1 deducted from Ali's proceeds $300 for a water bill escrow, $105,725.14 for satisfaction of the existing mortgage, and $9,000 in expenses for "Sellers Paid Closing Costs." (HUD-1 at 1.)

According to the HUD-1, after all of the deductions were taken out of the sale proceeds, Ali was entitled to receive $35,174.08. (HUD-1 at 1-2.) Ali signed a document titled "Agreement," in which Ali acknowledged a credit due to Noble of $29,996.42 in previously paid installment payments and a debit charged against Ali of $1,500 in pre-paid rent for Ali staying in her house through the month of December, 2000, for a total offset of $31,496.42 against Ali's proceeds at closing. Ali was issued a check in the amount of $3,177.66. (Am. Compl. ¶¶ 31-32; Compl. Ex. D ("Agreement").) The Agreement, which was signed by Ali and notarized, reads:

I, Betty G. Ali, hereby acknowledge that I have received a total sum of $29,996.42 from Anthony Noble for the real property located at 1010 G Street, S.E., Washington, D.C. All monies advanced through November 21, 2000, will be reimbursed to Mr. Noble at closing. Pre pay [sic] rent in the amount of $1,500.00 good thru [sic] January 2nd. Grand total of $31,496.42.

Ali alleges that she was induced to sign the Agreement because Tolbert told her that the difference between the $35,174.08 due to her under the HUD-1 and the $3,177.66 paid to her at the closing would be paid to her within three days of the closing.² (Am. Compl. ¶ 35.) Tolbert not only denies making any such representation (see Tolbert's Stmt. of Facts ¶ 23), but Tolbert and Noble allege that the money Ali was paid at closing was all she was entitled to receive in light of the offsets mentioned above against Ali's proceeds due under the HUD-1.³ (Tolbert's Stmt. of Facts ¶¶ 24-25, Tolbert's Mem. at 9; Noble's Mem. at 4-5.)⁴

The amended complaint alleges six counts against Tolbert and Noble: violations of the D.C. Consumer Protection Procedures Act ("DCCPPA"), D.C.Code § 28-3904, against Tolbert for brokering the sale of Ali's house (Count I); common law fraud against Tolbert (Count II); civil conspiracy to defraud Ali against Tolbert and Noble (Count III); aiding and abetting fraud against Tolbert and Noble (Count IV); negligence against Tolbert and Noble (Count VII); and equitable rescission of the agreement against Noble (Count IX).

Noble and Tolbert have moved for summary judgment. Ali opposes, arguing that there are genuine issues of material fact that preclude summary judgment.

DISCUSSION

"Summary judgment may be granted only where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Moore v. Hartman, 571 F.3d 62, 66 (D.C.Cir.2009) (citing Fed.R.Civ.P. 56(c) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A genuine issue of fact is found where the evidence is "such that a reasonable jury could return a verdict for the nonmoving party," after "resolving ambiguities and drawing all factual inferences in favor of the nonmoving party." Moore, 571 F.3d at 66 (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505). "The nonmoving party cannot defeat summary judgment by `simply show[ing] that there is some metaphysical doubt as to the material facts.'" Moore, 571 F.3d at 66 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). "Not all alleged factual disputes represent genuine issues of material fact which may only be resolved by a jury. Material facts are those that might affect the outcome of the suit under governing law, and a genuine dispute about material facts exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Nails v. England, 311 F.Supp.2d 116, 121 (D.D.C.2004) (internal quotations omitted).

In deciding whether the plaintiff has shown a genuine issue of material fact, a court should accept as true statements proffered by the non-movant, other than conclusory allegations or assertions that lack factual support in the record. Hussain v. Nicholson, 435 F.3d 359, 365 (D.C.Cir.2006) (citing Dist. Intown Prop. L.P. v. District of Columbia, 198 F.3d 874, 878 (D.C.Cir.1999)). To successfully oppose a motion for summary judgment under Rule 56(c), a non-moving party must present sufficient admissible evidence for a reasonable trier of fact to find for the nonmoving party. Juergens v. Urban Title Servs., 533 F.Supp.2d 64, 73 (D.D.C. 2008) (citing Laningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C.Cir.1987)). Briefs containing mere allegations or merely denying the movant's pleading are not enough to prevent summary judgment; instead, a non-movant must go beyond the pleadings to proffer specific facts rebutting the movant's assertions. See Greer v. Paulson, 505 F.3d 1306, 1315 (D.C.Cir. 2007); Burke v. Gould, 286 F.3d 513, 517-18 (D.C.Cir.2002). "Although the burden on the nonmoving party is not great, it is still required to show specific facts, as opposed to general allegations, that present a genuine issue worthy of trial." Palestine Info. Office v. Shultz, 853 F.2d 932, 944 (D.C.Cir.1988).

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