Bryant v. Washington Mut. Bank

• Decision Date: 19 December 2007
• Docket Number: Civil No. 6:07cv00015.
• Citation: 524 F.Supp.2d 753
• Court: U.S. District Court — Western District of Virginia
• Parties: Maureen BRYANT, Plaintiff, v. WASHINGTON MUTUAL BANK, Howard Bierman, and Bierman, Geesing, & Ward, LLC, Defendants.

524 F.Supp.2d 753

Maureen BRYANT, Plaintiff, v. WASHINGTON MUTUAL BANK, Howard Bierman, and Bierman, Geesing, & Ward, LLC, Defendants.

Civil No. 6:07cv00015.

United States District Court, W.D. Virginia, Lynchburg Division.

December 19, 2007.

COPYRIGHT MATERIAL OMITTED

Maureen Bryant, Lynchburg, VA, Pro se.

John Joseph Robertson, John Joseph Robertson, Long & Neyhart, P.C., Blacksburg, VA, for Washington Mutual Corp.

Matthew Daniel Cohen, Bierman, Geesing & Ward, LLC, Bethesda, MD, for Howard Bierman and Bierman, Geesing & Ward, LLC.

MEMORANDUM OPINION

NORMAN K. MOON, District Judge.

This matter is before the Court on Defendants' Amended Motion to Dismiss Plaintiff's Second Amended Complaint (docket entry no. 43). Defendants' motion is pursuant to Federal Rule of Civil Procedure Rule 12(b)(6) and argues that Plaintiffs Second Amended Complaint ("Complaint") fails to state a claim upon which relief can be granted. Accepting all factual allegations in Plaintiff's complaint as true and drawing all reasonable inferences in her favor, I find that Plaintiff has pled insufficient facts to support her claims. Accordingly, Defendants' Amended Motion to Dismiss Plaintiffs Second Amended Complaint will be GRANTED in an Order accompanying this Memorandum Opinion.

BACKGROUND

This case arises out of Plaintiff's attempt to pay off the mortgage on her home, which was held by Defendant Washington Mutual Bank,¹ with a $244,663.79 "Bill of Exchange drawn on a Contract Trust Account[,] which is approved by and administered by or through the Analysis and Control Division of the IRS."² (Second Am. Compl. ¶ 80.) According to Plaintiffs Complaint, Washington Mutual initially told her that the Bill of Exchange had been lost but eventually informed her that it was an unacceptable form of payment. Washington Mutual did not, however, return the Bill of Exchange to Plaintiff.

Finding that Plaintiff and her husband, who were joint-borrowers, were in default, Washington Mutual initiated foreclosure proceedings on the property and contracted with Defendant Bierman, Geesing & Ward, LLC to perform the foreclosure sale.³ Following the foreclosure sale, Plaintiff filed the instant action, in which she proceeds pro se.

STANDARD OF REVIEW

"The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint," not to "resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Edwards v. City of Goldsboro, 178 F.3d 231, 243.44 (4th Cir. 1999). In considering a Rule 12(b)(6) motion, a court must accept all allegations in the complaint as true and must draw all reasonable inferences in favor of the plaintiff. See id. at 244; Warner v. Buck Creek Nursery, Inc., 149 F.Supp.2d 246, 254-55 (W.D.Va.2001).

Although "a complaint attacked by a Rule 12(b)(6) motion to dismiss does `not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Att. Corp. v. Twombly, ___ U.S. ___, ___-___, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (alteration in original omitted) (citations omitted) (internal quotation marks omitted). Instead, "factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 1965 (citations omitted). Rule 12(b)(6) does "not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face"; plaintiffs must "nudge[ ] their claims across the line from conceivable to plausible" or "their complaint must be dismissed." Id. at 1974. As the Fourth Circuit has held, a plaintiff "must sufficiently allege facts to allow the Court to infer that all elements of each of his causes of action exist." Jordan v. Alternative Res. Corp., 458 F.3d 332, 344-45 (4th Cir.2006).

Because pro se complaints "represent the work of an untutored hand requiring special judicial solicitude," courts must "construe pro se complaints liberally." Beaudett v. City of Hampton, 775 F.2d 1274, 1277-78 (4th Cir.1985). Fourth Circuit precedent "expresse[s] the indisputable desire that those litigants with meritorious claims should not be tripped up in court on technical niceties." Id. at 1277-78 (citation omitted). Courts need not, however, "conjure up questions never squarely presented to them.... Even in the case of pro se litigants, they cannot be expected to construct full blown claims from sentence fragments." Id. at 1278.

DISCUSSION

With her Complaint, Plaintiff asks the Court to award her "a clear title to her home," as well as attorney's fees, costs, expenses, and interest. Plaintiff bases her claim of entitlement to this relief on three alleged causes of action: breach of contract, intentional infliction of emotional distress, and conspiracy. I will address each of these in turn.

Count One: Breach of Contract

Plaintiff's claim for breach of contract relies on language in the Deed of Trust, which secured the loan to Plaintiff and her husband, that "[p]ayments are deemed received by Lender when received at the location designated in the Note or at such other location as may be designated by Lender...." (Deed of Trust 4.)⁴ Plaintiff asserts that payment, in the form of the Bill of Exchange for $244,663.79, "was received at the location designated by the lender on November 20, 2006."⁵ (Second Am. Compl. ¶ 31.) Plaintiff therefore concludes that "[s]ince the payment was received at the designated location, this loan is paid off." (Id. ¶ 37.) By nonetheless foreclosing on Plaintiff's home, Plaintiff alleges that Defendants were in breach of the agreement contained in the Deed of Trust.

Under Virginia law,⁶ the elements of a claim for breach of contract are: (1) a duly executed and enforceable agreement; (2) the plaintiff's performance, or offers to perform, in accordance with the terms of the contract; (3) the defendant's breach or failure to perform under the agreement; and (4) actual damages sustained by the plaintiff that are recoverable under Virginia law. Carley Capital Group v. Newport News, 709 F.Supp. 1387, 1396 (E.D.Va. 1989). Construing Plaintiff's Complaint liberally, it appears that she has alleged the existence of each of these elements.

As I explained, however, "a formulaic recitation of the elements of a cause of action will not do." Twombly, 127 S.Ct. at 1959. Instead, Plaintiff must allege "enough facts to state a claim to relief that is plausible on its face"; she must "nudge[her] claims across the line from conceivable to plausible." Id. at 1974. It is on this point that Plaintiffs claim must fail because under the facts alleged, her claim that tendering the Bill of Exchange amounted to legitimate performance of the contract is highly implausible. This is not to say that Bills of Exchange are by definition illegitimate. Their use as negotiable instruments appears to have been common in the nineteenth and early twentieth centuries; indeed, one of Joseph Story's lesser-known works is his Commentaries on the Law of Bills of Exchange (1843). The term also appears on occasion in modern cases, usually in connection with international transactions. See, e.g., Gathercrest Ltd. v. First Am. Bank & Trust, 649 F.Supp. 106, 109-13 (M.D.Fla.1985). Moreover, the term "bill of exchange" can simply be a synonym for a "draft," such as a check. Black's Law Dictionary (8th ed.2004) (defining the term "draft").

The problem for Plaintiff is that she has not alleged facts that would allow me to infer that her Bill of Exchange is a legitimate negotiable instrument; indeed, the facts she alleges lead to the opposite inference.⁷ The details of Plaintiffs claim that the Bill of Exchange is a negotiable instrument are largely impenetrable and nonsensical. Nevertheless, to the extent that they are comprehensible, I will endeavor to set forth a basic summary of the major points.

The foundation of Plaintiff's claim is equal parts revisionist legal history and conspiracy theory. Supposedly, prior to the passage of the Fourteenth Amendment, there were no U.S. citizens; instead, people were citizens only of their individual states. Even after the passage of the Fourteenth Amendment, U.S. citizenship remains optional. The federal government, however, has tricked the populace into becoming U.S. citizens by entering into "contracts" embodied in such documents as birth certificates and social security cards. With these contracts, an individual unwittingly creates a fictitious entity (i.e., the U.S. citizen) that represents, but is separate from, the real person.⁸ Through these contracts, individuals also unknowingly pledge themselves and their property, through their newly created fictitious entities, as security for the national debt in exchange for the benefits of citizenship. However, the government cannot hold the profits it makes from this use of its citizens and their property in the general fund of the United States because doing so would constitute fraud, given that the profits technically belong to the actual owners of the property being pledged (i.e., the real people represented by the fictitious entities). Therefore, the government holds the profits in secret, individual trust accounts, one for each citizen.

Because the populace is unaware that their birth certificates and such are actually contracts with the government, these contracts are fraudulent. As a result, the officers of government are liable for treason unless they provide a remedy that allows an individual to recover what she is owed — namely, the profits held in her trust account, which the government has made from its use of her and her property in the commercial markets. In 1933, the government provided just such a remedy with House Joint Resolution 192,⁹ and the Uniform Commercial...