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 
2 

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)). 
3 

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. 
4 

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 
5 

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 
6 

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 
7 

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 
8 

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). 
9 

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 latepayment 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. 
10 

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). 
11 

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).