LATHAL PONDER, P laintif f,
v. CHASE HO ME F INANCE, LLC,

Defendan t. UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

Civil Action 10-425 (BJR)

MEMORAN DUM OP INION Plaintiff L athal Ponder, pr ocee ding pro se , bring s this action ag ainst defe ndant Chase 1 Home F inance , L L C (“Chase” ), pre sentingvarious cla ims arising f rom a fa iled eff

ort to modify Ponder’s mortg ag e, which Cha se held, a nd the re sulting for eclosure . Specifica lly , Ponder alleg es that Chase bre ache d two separ ate a g ree ments to modify the mortg ag e, made materia l misrepre sentations related to those agree ments, neg lige ntly failed to pre pare and deliver documents to him, and violated fe dera l guide lines for for eclosure on homes financ ed through the Fe dera l Housing A

uthority (“F HA”) . Be fore the Court is Chase’s motion to dism iss, in which it alleg es that Ponder’ s claims are barr ed by the doctrine s of re s judicata a nd collater al estoppel, and fur ther that they

fail to state a c laim upon which re lief may be grante d [Dkt. #2] . Upon consideration of the motion, the oppositi on there to, and the re cord of this case, the Court conclude s that the motion mustbe g rante d in part and de nied in part.

Although he is procee ding pro se , Ponder appe ars to be a n attorney
. See Ponder 1 v. Chase HomeFinance , 666 F. Supp. 2d 45, 46 n.1 (D.D .C. 2009).I. BACKG ROUND

In Dec ember

of 2000, Ponder obtaine d an F HA-insure d loan from a lender (who is not a party to this action) in order to pur chase a par cel of proper ty in the District of Columbia. That lender subsequently

sold Ponder’s loan to Chase. Compl. ¶¶ 6–7. In May of 2008, Chase
asser ted that Ponder ha d defa

ulted on the loan and thr eate ned to commenc e for eclosure proce eding s. Ponder alleg es that in J uly of that year , the par

ties rea ched a

n agree ment to modify the loan. Id . ¶¶ 9–12. He asser ts that as part of tha

t ag ree ment, Chase agree d to cea se fore closure pr ocee dings on the proper ty
. Id . ¶ 13. Ponder wa ited for Chase to send him a copy of the modification documents, but did not receive one until at least two we eks later , when he discovere d an enve lope from Chase , larg ely destroyed by

rain, unde r his doormat, and la rg ely indecipher able. Ponder

contac ted Chase to re quest another copy . Acc ording ly

to Ponder, Chase replied that it would send another c opy , but Ponder neve r re ceive d one. Id . ¶¶ 15–19. In August, Ponder rec eived a letter fr om Chase asser

ting that he had fa iled to comply with the modification agree ment. He c ontacted Cha se and a g ain explained that he had not r ece ived an intact copy

of the a g ree ment. Ponder ave rs that Chase then of fer ed, and he acc epted, the opportunity

to rea pply for the modific ation. Id . ¶¶ 20–22. F ollowing f urther de lay s duringwhich Ponder did not hear

from Chase, he contac ted Chase a g ain and wa s told to suppl y more paper work, a nd that the modification had be en appr oved. He provided the r equeste d documents in October . L ater

that month, he discovere d that the fore closure pr ocee dings a g ainst his property
wer e still ongoing
. Id . ¶¶ 24–26. The followingJ uly , Ponder filed suit ag ainst Chase in the District of Columbia Superior Court, alleg ing br eac h of contra ct, misrepre sentation, and ne g lige nce. T hat suit was re moved to
2this Court by Chase and a ssigne d to J udg e Rosemar y M. Colly er. See Ponder v. Chase H ome Finance , No. 09-01351 (July 21, 2009) (notice of re moval, dkt. no. 1). Chase moved to dismiss that action for

failure to state a c laim under F eder al Rule of Civil P roce dure 12( b)(6) . J udg e Colly er grante d Chase’s motion, dismiss ing a ll of Ponder’s cla ims withoutprejudice
. See Ponder v. Chase H

ome Financ e , 666 F. Supp. 2d 45, 50 (D.D .C. 2009). Ponder subseque ntly broug ht this action, seekingdamag es, a r evision of his cre dit report, and c lear title to the proper ty
. II. LEGAL STANDARD To survive a

motion to di smiss pursuant to Rul e 12(b) (6), a complaint need not c ontain detailed f actua l alleg ations, but it m ust recite f acts suff icient to at least “ raise a

rig ht to relief above the speculative level . . . on the a ssumption t hat all the alleg ations in the complaint are true (eve n if doubtful in fac t).” Bell Atl. Corp. v. Tw ombly , 550 U.S. 544, 555 (2007). A “ pleading that offe rs ‘labe ls and conc lusions’ or ‘a f ormulaic re citation of the e lements of a c ause of action will not do.’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Twombly , 550 U.S. at 555). In decidinga Rule 12(b) (6) motion, the Court may consider only

the fa cts alleg ed in the complaint, documents attac hed as e x hibits or incorporate d by ref ere nce in the c omplaint, and matters about whic h the Court may take judicial notice
. EEOC v. St. Francis Xav ier Parochial Sch. , 117 F.3d 621, 624 ( D.C. Cir. 1997). III. ANALYSIS Chase ag ain see ks the dismissal of Ponder’s complaint for f ailure to state a

claim under Rule 12(b)(6) , this ti me on two g rounds. Fir st, it argues that, bec ause of J udg e Colly er’ s dismiss al of Ponder’ s previous ca se, all of his cla ims are ba rre d by the doctrine s res judicata and

3collater al estoppel. Sec ond, it argues that, eve n if Ponder’s c laims are not ba rre d, they do not meet the plea ding sta

ndards on whic h Rule 12(b)(6) is based. The Court addre sses ea ch argument in turn and, bec ause the case is before the Court on diversity g rounds, applies District of Columbia law. See P onder , 666 F. Supp. 2d at 48 n.2 (a pplying D .C. law to Ponder’s prior claims reg ardingthe same e vents). A. P onder’s Claim s Are Not Barr ed by Res Judi cata orCollater al Estopp el 2 “Unde r the doc trine of c laim prec lusion or res judicata , when a valid final judg ment has been e ntere d on the merits, the par ties . . . are barr ed, in a subseque nt proce eding , from relitig atingthe same c laim or any claim that might have bee n raised in the f irst proce eding .” W ash. Med. Ctr., Inc. v . Holle , 573 A.2d 1269, 1280–81 (D.C. 1990). Similarly , collater al estoppel, also known a s issue prec lusion, rende rs conclusive in the s ame or a s ub s eq u ent action deter mination of an issue of fac t or law when (1) the issue is actua lly litigated and (2) deter mined by a valid, final judgme nt on the merits; (3) af t er a ful l and fair opportunity for litigation by the par t i es or their privies; (4) under circ umstances wher e the deter mination was essential to the judg ment, and not mere ly dictum. Id. at 1283. Her e, Chase a sserts that all of Ponder’ s claims are barr ed by these doc trines bec ause Ponder pre viously

filed — and Judge Colly er dismissed — an a ction ag ainst Chase base d on the
same e vents and involvingmany of the same claims. Def .’s Mem. in Supp. of Mot. to Dismi ss (“D ef.’ s Mem.”) at 4–9; see Ponde r , 666 F. Supp. 2d at 50. Ponder r etorts that neither doctrine is applicable beca

use the dismissal was without prejudice , meaningthat no final judg ment on the merits occur

red. Pl.’s Opp’n to De f.’s Mot. (“ Pl.’s Opp’n”) at 5 (emphasis adde d). Chase Res judicata is “pr operly broug ht in a pre- answe r Rule 12(b)( 6) motion when all 2 rele vant fa cts are shown by the cour t’s own re cords . . . .” Camp v. Kollen , 567 F. Supp. 2d 170, 172 (D.D.C. 2008). 4acknow ledg es that Judge Colly er e x pressly dismiss ed Ponder’ s first suit withoutprejudice , but
asser ts that she “indee d expressed [her] decision on the merits in a seve n-pag e memora ndum.” Def .’s Reply to Pl.’s Opp’n (“De f.’s Reply”) at 2 n.2. I t also points to t he cour t’s statement in its Orde r that it constituted a final a ppeala ble orde r. Ponder’ s argument is corre ct. A dismissal for failure to state a c laim under Rule 12(b) (6), a s occur red he re, nor

mally constitutes a rulingon the merits with prec lusive eff ect. Haase v . Sessions , 835 F.2d 902, 906 (D.C. Cir. 1987). It is, however, “ beyond dispute that a dismissal without prejudice does not deter mine the merits.” Interdonato v. I nterdonato , 521 A.2d 1124, 1131 n.11 (D.C. 1987); accord Thoubboron v. Ford Motor Co. , 809 A.2d 1204, 1210 (D.C. 2002); McAlister v. Potter , 2012 WL540080, at *3 (D.D .C. Feb. 21, 2012) (“B eca use the c laim was dismissed without prejudice , there was no ‘f inal judgme nt on the merits,’ and r es judicata does not apply .”); Cirals ky v . C.I.A. , 355 F.3d 661, ( D.C. Cir. 2004) (“[C] ourts often re g ard the dismiss al without prejudice of a c omplaint as ‘not final, and thus not appe alable unde r 28 U.S.C. § 1291, beca use the plaintiff is fre e to amend his plea ding a nd continue the litigation.’”) ( quoting Hoskins v. Poelstra , 320 F.3d 761, 763 ( 7th Cir.2003) and citing W MX Tech., I

nc. v. M iller , 104 F.3d 1133, 1136 (9th Cir. 1997) and 19 J A M E S W. M O O R E , M O O R E ’ S F E D E R A L P R A C T I C E § 201.14 (3d ed. 2003)). The re is no lang

uag e in J udg e Colly er’ s Memorandum Opinion, which itself use s the phrase “without prejudice ” as to e ach individual cla im it addresses, that sug g ests that she intended to depa

rt from this settled use of the term. See Ponder , 666 F. Supp. 2d at 48–50. In addition, the order

at issue states explicitly

that “De fenda

nt’s motion to di smiss i s GRANTED; and it is FURTHER ORDERED that this case is DI SMI SSED withoutprejudice .” Or der of Oct. 28, 2009, Civil Action No. 09-1351 ( emphasis in orig inal). Thus, the Court conc ludes that J udg e
5Colly er did not re ach a final judg ment as to the merits of Ponder ’s claims. As a re sult, neither 3 claim nor issue pre clusion applies her e. Ac cording ly , the Court will consider the mer its of Ponder’s c laims. B. The Mer its of Ponder’s Claim s The Court now c onsiders whe ther Ponder’ s complaint states one or mor e cla ims upon which re lief may

be g rante d. The Court addr esses e ach c ount of the complaint in order
. 1. Count I: Breach of Contract To state a br eac h of contra ct claim, a “ plaintiff must alleg e the f ollowing e lements: ‘(1) a valid contra ct betwe en the pa rties; (2) a

n obligation or duty

arisingout of the contra ct; (3) a brea ch of that duty ; and (4) da mag es ca used by the bre ach.’ ” Mesumbev. Howard Univ. , 706 F. Supp. 2d 86, 94 (D.D .C. 2010) (quoting Tsint olas Realty Co. v. Me ndez , 984 A.2d 181, 187 (D.C. 2009)). T he esse ntial elements of a valid contra ct ar e compe tent parties, law ful subject matter, leg al consider ation, mutuality of asse nt, and mutuality

of oblig ation. Henk

e v. U .S. Dep’ t of Commerce , 83 F.3d 1445, 1450 ( D.C. Cir. 1996). J udg e Colly er dismissed Ponder’s or igina l brea ch of c ontrac t claim on the ground that he had fa iled to alleg e fa cts sufficie nt to establish that the parties had e ntere d into a binding ag ree ment. She reje cted Ponder ’s ar gument that the par ties had ente red into an implied-in-f act contra ct, conc luding that a t most, “the parties ora lly agree d to be bound by

a fina l ag ree ment to
To the extent that J udg e Colly er’ s opinion “makes finding s or otherw ise expresses 3 an opinion as to the merits of the c ase . . . doubt stemmingfrom this inconsistency is resolved in favor of the viewthat the words ‘ without prejudice’ show that ultimately the cour t did not deter mine the merits of the c ontroversy . . . .” 149 A.L .R. 553, § I I .d.5. As well, the Or der a lso states that it is “final and a ppeala ble” is of no moment. Cirals ky v . C.I.A. , 355 F.3d 661, 666 (D.C. Cir. 2004) (f

inding that most courts that have held that the dismissal of an a ction — whether with or without prejudice — is fina l and appe alable.)
. 6be dra

wn up and sig ned later ,” which doe s not create a bindingagree ment under D istrict law. Ponder , 666 F. Supp. 2d at 48 (c iting Ove rseas Partners, Inc. v . PROGEN Musav irlik ve Y onetim Hizmetleri, Ltd. Sikerti , 15 F. Supp. 2d 47, 53 (D.D .C. 1998)). Her e, Ponder e schew s the implied-in-fac t argument and take s a diffe rent tac k. He a sserts that he and Cha se ente red into an e x press ora l agree ment to modify his mortga g e, with the documents that Chase w as supposed to send him mere ly rec ordingthe agree d-upon terms. See Compl. ¶¶ 9–13, 21–25; Pl .’s Opp’n at 6–7. In support of this arg ument, he cites a

line of D.C.
case s that hold that “‘par

ties may make a n enfor cea

ble contra ct binding the m to prepar e and execute a subse quent documenta ry ag ree ment,’ as longas ‘a g ree ment [has] been e x presse d on all essential ter

ms that are to be incorporated in the document.’ ” 1836 S Street Tenants Ass’n, Inc

. v. Estate of B. Battle , 965 A.2d 832, 839 (D.C. 2009) ( quoting D.C. Area Cmty. Council, Inc. v

. Jack son , 385 A.2d 185, 187 (D.C. 1978))
. The Court conc ludes that, viewe d in light of this argument and with its added fa ctual alleg ations, Ponder’s complaint now state s a cla im for bre ach of contra ct. This claim, with all
rea sonable infe renc es dra wn in Ponder’s fa

vor, see Ste wart v. Nat’l Educ. Ass’n , 471 F.3d 169, 173 (D.C. Cir. 2006), g oes as f ollows: upon discoveringthat he wa s in default, Ponder c ontacted Chase and “ enter ed into neg otiations to cure the a lleg ed def ault.” Compl. ¶ 9. After

further communications betwe en the pa rties, which include d Ponder providingChase with ce rtain financ ial information, they rea ched a

n oral a g ree ment to modify the exist ing loa

n contra ct, wher eby Chase would ce ase f

orec losure proc eeding s and ac cept pa y ments on a ce rtain sche dule in exchang e for

Ponder makingthose pay ments and providingcer

tain documentation. This ag ree ment was to be r ecor ded in a wr itten document that Chase would pr ovide. Ponder took the
7initial st eps to perf orm his end of the ba

rg ain. See id . ¶¶ 9–14. This same proce ss was essentially

repe ated whe n the document f ailed to ar rive in his mail. Id . ¶¶ 21–24. F urther, Ponder adds r eleva

nt alleg ations not presente d in his former c omplaint and attache s to his opposition brief two corr espondenc es fr om Chase: the first explaining “ the re quirements of [P onder’ s] R epay

ment Plan,” the sec ond a “le tter of a g ree ment,” that lay s out the terms and conditions of the re pay

ment plan, and be ars the signature s of Ponder, his wife , and a Cha se repr esentative. Id. at 13–14. These doc uments support his argument that a Jul y 2008 contra ct 4 exis ted with cer

tain terms. Moreove r, Ponder’ s claim identifies the pa rties and mate rial terms of the putative contra cts, and a lleg es fa cts perta ining to both Ponder’s pe rfor mance and Chase’ s brea ch. In Nattah v. Bush , 605 F.3d 1052 ( D.C. Cir. 2010), the D.C. Circuit conclude d that the plaintiff had sufficie ntly

plead a brea ch of c ontrac t claim wher e his complaint had de scribed the terms of the alleg ed contr act a

nd the nature of the de fenda nts’ brea ch, despite some c onfusion in the complaint about when the contra ct had be en for med and the pla intiff’s inability to identify

the ag ents of the de fenda

nts who had ente red into the c ontrac t. See id. at 1057–58. Althoug h

Chase ar gues tha, in re solving this Rule 12(b)(6) motion, the Court is prec luded 4 from conside ringthese attachments. Chase c ontends that any materia ls that are not de scribed in, attache d to, or incorpor ated by ref ere nce in the c omplaint, and that the two documents mee t none of the these exceptions. Def.’ s Reply at 3 n.3 (c iting EEOC v. St. Francis Xav ier Parochial Sch. , 117 F.3d 621, 624 ( D.C. Cir. 1997). The Court disagree s. The attac hed cor responde nces a

re ref ere nced in the c omplaint. I n rele vant par t, Ponder alleg es the follow f acts: “I n ear ly J uly , 2008, the Plaintiff and the De fenda nt ag ree d on a modification of the loan. Plaintiff agree d to the terms and f

axed a copy

of the agreed payment instrument reque sted by

the Def endant, a nd pursuant to the lende rs instructions. As a re sult of the Def endant’ s rec eipt of the docume nts , the Def endant a gree d that it would cease all fore closure pr ocee dings a nd forwa rd the fina l ag ree ment.” (e mphasis added) . Such ref ere nce to the attached materials is sufficie nt. There fore , the Court considers the m duly incorporated into the complaint.

8Ponder’s c omplaint is l ess detailed tha n the complaint in Nattah , the Court finds that this case
more c losely

rese mbles Nattah than it does other post- Twomblyand -Iqbal case s where brea ch of contra ct claims have been dismissed for failure to state a c laim. Compare id. , and Compl. ¶¶ 9–14, 21–25, with Edmond v. Am. Educ. Se rvs ., 2010 WL4269129, at *2 (D.D .C. Oct. 28, 2010) (collec ting c ases) ; cf. Ake rs v. Beal Bank, 668 F. Supp. 2d 197, 200 (D.D .C. 2009) (deny ing a Rule 12(b)(6) motion to di smiss a simi larly vague pro se brea ch of c ontrac t complaint). After consideration of these ca ses, and be aringin mind the Supreme Court’s admonition that “a complaint attacke d by

a Rule 12(b) (6) motion to dismi ss does not need de tailed fa ctual alleg ations,” Twombly , 550 U.S. at 555, the Court conclude s that Chase’s motion must be denied as to Count I
. See also Ak tieselskabet AF 21. Nov embe r 2001 v. FameJeans I nc. , 525 F.3d 8, 16 (D.C. Cir. 2008) (“ ‘[S] pecif ic fa cts are not nece ssary ,’ and a complaint need only

g ive the defe ndant fa ir notice of the claims.” (quoting Erickson v . Pardus , 551 U.S. 89, 93 (2007) (pe r curiam))). 2. Count II: Negligent Misre presentat ion 5 Ponder cla ims that “[i ]n bot h J uly , 2008 and Oc tober, 2008, the D efe ndant knowing ly and falsely repr esente d that it ag ree d to the terms of the modification of the loan betwe en the Plaintiff and the De fenda

nt. I t further

ag ree d that it would cease all fore closure pr ocee dings.” Compl. ¶ 36. The de fenda

nts deny such alleg ations and conte nd that he has f ailed to state a

claim. The

Although Judge Colly er c onstrued the c ount to present a c laim of fra ud, see 5 Ponder , 666 F. Supp. 2d at 49. the Court, in consider ation of additional fa cts included in Ponder’s c urre nt complaint and the plaintiff’ s ong oing use of the “ misrepre sentation” title in the new c omplaint, construes it as a c laim of neg lige nt misreprese ntation. 9Court concludes that Ponder’s cla ims meet the pleadingrequire ments at this stage of the

litigation and should not be dismissed. In the District of Columbia, a plaintiff a lleg ing ne g lige nt misreprese ntation must establish that (1) the de fenda

nt neg lige ntly

communicated f

alse infor mation, (2) the de fenda

nt intended or should have re cog nized that the plaintiff would likely be imperiled by

action take n in relianc e upon his misreprese ntation, and that (3) the plaintiff re asonably relied upon the false inf

ormation to his detriment. Hall v. Ford Enter, Ltd. , 445 A.2d 610, 612 (D.C. 1982); accord H oward University v . W

atkins , 2012 WL1454487, at *6 (D.D .C. Apr. 27, 2012). Ponder plea ds the followingfac ts in support of his mi srepr esentation claim: In August, 2008, “the Plaintiff telephone d the Def endant a nd notified them that he ha d not rec eived the ag ree ment pursuant to the De fenda nt’s repr esenta

tions and the Def

endant a sked the Plaintiff if it wanted to r eapply

for the modific ation.” Compl. ¶ 20. Ponder re sponded in the af firmative a

nd “aske d if there was suff

icient time to allow the modification to g o throug h. The a g ent re sponded that there was suff

icient time and that anothe r ag ent would be c alling shor tly .” Id. ¶ 21. Howeve r, ac cording

to Ponder, ‘the a g ent did not call” a nd Ponder later

telephoned Cha se “to inquire as to what was g oing on a nd Plaintiff was told to send them pay stubs and a copy

of a chec k for $5,000.00.” Id. ¶ 24. In addition, Chase’s ag ent alleg edly “indicate d that the modification was a

pproved a nd all fore closure pr ocee dings w ould cea se.” Id. Ponder complied with the ag ree ment and “in Oc tober, 2008, the Plaintiff for war ded the r equeste d documents and copy of the c heck.” Id. ¶ 25. Howe ver, “ it was not until l ate Oc tober, 2008, that the Plaintiff lear ned that he ha d been de ceive d by Def endant’ s ag ents and De fenda nt had proc eede d with the fore closure e ven thoug h it had misrepre sented to the Plaintiff that the for eclosure would cea se.”
10Id. ¶ 26. The Court f inds that such fac ts, construed in favor of the pla intiff, fulfill the first two elements of ne g lige nt misreprese ntation. Chase misrepre sented mate rial fa cts related to the status of the modification’s a pproval a nd of the for eclosure proce eding . In addition, it shoul d have known that Ponder would re ly on the ag ent’s communication about these matters. The Court fur

ther finds that the a lleg ed fa cts sug g est Ponder, on the f acts plea d,
rea sonably

relied on the Chase’s a lleg ed re prese ntations. Ponder aver s that “[t] he re prese ntations made by the Def endant we re material a

nd was [sic] m ade to mislead the Plaintiff,” and that he “detr imentally

relied on th[ose] represe ntations.” Id . ¶¶ 38–39. Specifica lly , he states that “ [a] s 6

a re sult of the Def

endants [sic] represe ntations and in relianc e of the repr esentations of the To the extent plaintiffs does seek to a dvance a cla im for fra ud, such a c laim must 6 be dismissed for fa ilure to state a c laim upon which re lief ca n be grante d. J udg e Colly er dismiss ed Ponder’ s orig inal misrepre sentation claim, construingit as a cla im for fra ud, on the g round that it failed to comply with Fede ral Rule of Civil Procedure 9(b), whic h imposes a heig htened plea ding sta

ndard f or alleg ations fra

ud or mistake. Ponder , 666 F. Supp. 2d at 49; see United States ex

rel. Joseph v . Cannon , 642 F.2d 1373, 1385 ( D.C. Cir. 1981) (“[T]he pleade r must state the time, place and conte nt of the fa lse misrepre sentations, the fa ct misrepre sented a

nd what wa s obtained or g iven up as a conseque nce of

the fra ud.”). I n his first complaint, Ponder mere ly alleg ed that Chase “ knowing ly and fa lsely

repr esente d that it would provide modification of the loan agree ment for the Plaintiff to sig n and that the f orec losure would be stopped.” Ponder , No. 09-01351, ¶¶ 27 (Jul y 30, 2009) (c omplaint, dkt. no. 4-1). Ponder’s c urre nt complaint expands upon thi s alleg ation, descr ibing his conta cts with Chase in more de tail. SeeCompl. ¶¶ 11–14, 19, 21–22, 24, 26, 35–40. None of Ponder ’s adde d fac tual alleg ations, howeve r, plea d a nec essar y element of

fra ud: intent to deceive. See Drake , 993 A.2d at 622. Ponder asserts that Chase’s a lleg ed misrepr esentation was “made to misl ead,” Compl. ¶ 39, but he provides no f

actua l support for that asse rtion. Thus, under the sta ndards f or fr aud set forth under

D.C. law, Ponder’ s revised misre prese ntation claim fails to state a c laim for fr aud. See Iqbal , 556 U.S. at 678 (“Apleadingthat offe rs ‘labe ls and conc lusions’ or ‘a f ormulaic rec itation of the eleme nts of a ca use of a ction will not do.’” (quoting Twombly , 550 U.S. at 555)). In opposing Chase ’s motion, Ponder asserts that he has alleg ed knowing falsity with sufficient specific ity

to meet fe dera l pleadingstandards. Pl.’s Opp’n at 8. He re fer s, howeve r, to the nowdefunc t rule that a ple adingshould not be dismis sed for failure to state a c laim unless it is beyond doubt that the plaintiff ca n prove “ no set of fa cts” in support of he r cla im that would entitle her to relief
. See id. ; Iqbal , 556 U.S. at 678 (notingthat “ Twomblyretire d the Conley[ v. Gibson , 355 U.S. 41(1957),] no-set-of- fac ts test”). 11Def

endant, the Plaintiff c ease d all other re medies ava ilable to him under the District of Columbia code.” Compl. ¶ 14. These alleg ed fa cts are entirely plausible. Acc ording ly , the Court conclude s that Ponder has plea d sufficie nt fac ts to state a claim for neg lige nt misreprese ntation of mater ial fac ts related to the status of his loan modification and the r elated f orec losure proce eding s. 3. Count III: Violation of F ederal Hom e F orec losure G uid elines Next, P onder pr esents a ne w claim: he a sserts that, “[a]s the mortga g ee f or a F HA financ ed home, [Chase] was requir ed to follow pre -for eclosure guidelines established by the United States Depa

rtment of Housingand Ur ban De velopment,” a s codified at 24 C.F.R. § 203, which re quired Chase to provide “pr oper notice to the Plaintiff in a timely manner ” and “alter native mea

ns to forec losure.” Compl. ¶¶ 42–43. Chase responds that Ponder doe s not explain which portion of 24 C.F.R. § 203 — which has ove r 100 subsec tions — Chase alleg edly violated, or how it did so. Def .’s Mem. at 9–10. In opposing Chase ’s motion, Ponder provides no more spec ificity , asser ting only that he “be lieves the c omplaint is clear c oncer ning this cla im,” and, in the alter

native, see king pe rmission to amend his complaint. Pl .’s Opp’n at 9–10. As prese nted in the complaint, this claim must fail. Count I I Idoes not provide e noug h information to “ra ise a right to relief a bove the spe culative leve l.” Twombly , 550 U.S. at 555. I t does not identify

the spec ific guidelines that Chase a lleg edly violated, or e x plain when or how it did so. Si mply

put, it presents an “ unadorne d, the-de fenda nt-unlawfully -har

med-me a ccusation.” Iqbal , 556 U.S. at 678. Acc ording ly , it fails to state a cla im upon which relief may be grante d. 4. Count IV: Negligence

12Ponder asse rts that Chase wa s neg lige nt in failing to “ insure ac curate deliver y of the contra ct document.” Compl. ¶ 49. A plaintiff pressinga cla im of neg lige nce must establish: “(1) a duty , owed by

the def endant to the plaintiff, to e x erc ise rea sonable c are , (2) a brea ch of this duty , and (3) an injury

to the plaintiff proxim ately cause d by

the def endant’ s brea ch.” W

ilson v. Good Humor Corp ., 757 F.2d 1293, 1297 n.3 ( D.C. Cir. 1985). Under D.C. law, all contra cts contain an implied duty

of g ood faith and f

air de aling
. Allworth v. Howard Univ ., 890 A.2d 194, 201 (D.C. 2006). This duty require s that “neither

party shall do any

thing whic h will have the eff ect of destroying or

injuring the rig ht of the other pa rty to rec eive the f

ruits of the contra ct.” Murray v . W

ells Fargo Home M

ortg. , 953 A.2d 308, 321 (D.C. 2008) ( citingid. ). As we ll, a party is also liable for br eac h of this duty if she “e vades the spirit of the contra ct, willfully rende rs imperfe ct per formanc e, or inter fer es with perf ormanc e by

the other pa

rty .” Id. Ponder’s re vised neg lige nce c laim asserts that Chase ha d a duty to ensure both pr oper prepa ration and de livery

of the doc uments, Compl. ¶¶ 46, 48. Defe ndants argue that, bec ause no fiduciar y duty runs from Chase to Ponder, such alleg ations do not state a cla im upon which this Court can grant re lief. The Court disagree s. As J udg e Colly er e x plained, the de btor-cr editor relationship between the pa rties did not give rise to a f iduciary duty
. See Ponder , 666 F. Supp. 2d at 49–50. Howe ver, Ponder is corre ct that Chase’ s failure to deliver the doc ument, in
acc ordanc e with its stated commitment to do so, constitutes a bre ach of the contractual duty

of g ood faith and f

air de aling . Such a fa ilure, combined w ith its assura nce to the c ontrary , denied Ponder the fr

uits of the contra ct and e vaded its spirit — i.e. to enable modification of the loan and ther eby

preve nt forec losure. Construingall fac ts in P onder’ s favor , there fore , the Court conclude s that Ponder has stated a neg lige nce c laim upon which re lief may be grante d.
13IV. CONCLUSION

For the fore g oing r easons, Chase ’s motion to dis miss with prejudice [#2] must be g rante d in part and de nied in part. Ac cording ly , it is t his 23rd of May 2012 here by ORDERED that Chase’s motion to dismi ss is GR ANTED as to count I I I ; and it is further ORDERED that Chase’s motion to dismi ss is DENIED as to counts I , I I , IV.

__________________________________________________________________ BA RBARA J. R OTHSTEI N UNI TED STATES DI STRI CT J UDGE

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