1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
GILDA MALEK, Plaintiff,

v. FLAGSTAR BANK, Defendant. Civil Action No. 13-01597 (BAH) Judge Beryl A. Howell

MEMORANDUM OPINION The plaintiff, Gilda Malek, filed this action against th e defendant Flagstar Bank, a federally chartered savings bank, to challenge the record ing of a deed of trust that was executed by the plaintiff’s husband in exchange for a $500,000 loan secured by the couple’s house. See generally Compl., ECF No. 1. The defendant has move d, under Federal Rule of Civil Procedure 12(b)(6), to dismiss the Complaint for failure to state a claim. See Def.’s Mot. to Dismiss (Def.’s Mot.), ECF No. 6. For the reasons explained below, the defendant’s motion is denied in part and granted in part.
I. BACKGROUND On March 15, 2000, the plaintiff and her hus band, Farshied Malek (“Mr. Malek”), acquired fee simple title by deed as tenants by the en tireties to their house, which is located at 4836 Van Ness Street, N.W., Washin gton, D.C. Compl. ¶¶ 6-7, ECF No. 1-1; Def.’s Mot., Ex. A (Residential Property Deed, date d March 15, 2000) at 1, ECF No. 6-2. Five years later, on November 15, 2005, Mr. Malek obtained from th e defendant a $500,000 Home Equity Line of Credit (“Home Equity Loan”), with an ini tial advance of $200,000 and a ten year repayment period. Compl. ¶ 8; Def.’s Mot., Ex. B (Home E quity Line of Credit Agreement), ECF No. 6-3.2 To secure this loan, Mr. Malek executed a “Credit Line Deed of Trust” (“ Deed of Trust”) for the benefit of the defendant that en cumbered the couple’s house. Compl. ¶ 8; Def.’s Mot., Ex. C (Credit Line Deed of Trust), ECF No. 6-4. The parties do not dispute that the plaintiff did not execute the Home Equity Loan, the Deed of Trus t, or any other document in connection with the loan made by the defendant to the plaintiff’s spouse. Compl. ¶ 10; see generally Def.’s Mot., Ex.
C. On November 28, 2005, the defendant recorded th e Deed of Trust with the Office of the Recorder of Deeds of the Di strict of Columbia. Compl

. ¶¶ 9–10. Almost eight years later and about two years before repayment of of the Home Equity Loan was due in full, the plaintiff filed suit, on July 18, 2013, against the defendant asserti ng three claims: (1) that the Deed of Trust should be declared invalid (“Count I”), id. ¶¶ 11-12; (2) fraud (“Count II”), id. ¶¶ 13-17; and (3) negligence (“Count III), id. ¶¶ 18-20. The case was originally filed in the Superior Court of the District of Columbia and subsequently remove d to this Court based on diversity jurisdiction. 1
See Notice of Removal, ECF No. 1. Shortly thereafter, the defendant filed the pending motion to dismiss the Complaint with prejudice. II. LEGAL STANDARDS Federal Rule of Civil Procedure 8(a)(2) re quires that a complaint contain “a short and plain statement of the claim showin g that the pleader is entitled to relief,” to encourage brevity and, at the same time, “give the defendant fair notice of what the . . . claim is and the grounds

1 The Court has diversity jurisdiction over this case, pursuant to 28 U.S.C. § 1332, since the plaintiff “resides at 4836 Van Ness Street, Washington, D.C. 20016” and is a citizen of the District of Columbia; the defendant is a “federally chartered savings bank with its principal place of busin ess in Troy, Michigan;” and the amount in controversy exceeds the $75,000 thresh old based upon the plaintiff’s de mand for judgment “in the amount of $1,000,000, plus attorneys’ fees, interest and costs,” and the Credit Line Deed of Trust at issue amounts to $500,000. See Notice of Removal ¶¶ 5, 6, 8; Busby v. Capital One, N.A ., 932 F. Supp. 2d 114, 132-133 (D.D.C. 2013) (“the amount in controversy is equal to the amount of the loan”); Duma v. JPMorgan Chase , 828 F. Supp. 2d 83, 86 (D.D.C. 2011) aff’d sub nom. Duma v. JPMorgan Chase & Co. , 11-7147, 2012 WL 1450548 (D.C. Cir. Apr. 20, 2012) (amount in controversy assessed by the amount of the deed of trust).3 upon which it rests.” Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007) (ellipses in original; internal quotations and citations omitted); Tellabs, Inc. v. Makor Issues & Rights, Ltd ., 551 U.S. 308, 319 (2007). The Supreme Court ha s cautioned that although “Rule 8 marks a notable and generous departure fr om the hyper-technical, code-pleading regime of a prior era, [] it does not unlock the doors of discovery fo r a plaintiff armed with nothing more than conclusions.” Ashcroft v. Iqbal , 556 U.S. 662, 678-79 (2009). To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Wood v. Moss , 134 S. Ct. 2056, 2067 (2014) (quoting Iqbal , 556 U.S. at 678). A clai m is facially plausible when the plaintiff pleads factual content that is more than “merely consis tent with a defendant’s liability,” but allows the court to draw the reasonab le inference that the defendant is liable for the misconduct alleged. Id. at 678 (citing Twombly , 550 U.S. at 557); see also Rudder v. Williams , 666 F.3d 790, 794 (D.C. Cir. 2012). Although “detaile d factual allegations” are not required to withstand a Rule 12(b)(6) motion, a complaint mustoffer “more than labels and conclusions” or “formulaic recitation of the elements of a cause of action” to provide “g rounds” of “entitle[ment] to relief,” Twombly , 550 U.S. at 555 (alteration in origin al), and “nudge[ ] [the] claims across the line from conceivable to plausible,” id . at 570. Thus, “a complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal , 556 U.S. at 678 (quoting Twombly , 550 U.S. at 557). In considering a motion to dismiss for failure to plead a claim on which relief can be granted, the court must consider the complaint in its entirety, accepting all factual allegations in the complaint as true, even if doubtful in fact. Twombly , 550 U.S. at 555-56; Sissel v. United States Dep’t of Health and Human Servs. , No. 13-5202, 2014 U.S. App. LEXIS 14397, at *74 (D.C. Cir. June 29, 2014) (in considering a Rule 12(b)(6) motion, the “court assumes the truth of all well-pleaded factual allegations in the comp laint and construes reasonable inferences from those allegations in the plaintiff’s favor, but is not required to accep t the plaintiff’s legal conclusions as correct”) (interna l quotations and citations omitt ed). In addition, courts may “ordinarily examine” other sources “when ruli ng on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the comp laint by reference, and matters of which a court may take judicial notice.” Tellabs , 551 U.S. at 322 (citing 5B Wr ight & Miller § 1357 (3d ed. 2004 and Supp. 2007)). III. DISCUSSION The plaintiff filed this action for a declarator y judgment that the Deed of Trust executed by the defendant is invalid. Comp l. ¶¶ 11-12. In addition, the plain tiff alleges that she is owed damages in excess of $1,000,000 because of the defendant’s fraudulent, id. ¶¶ 13-17, and negligent, id. ¶¶ 18-20, conduct in allegedly wrongfully recording the Deed of Trust. The defendant counters that all three claims “must be dismissed pursuant to Rule 12(b)(6) for failure to state a claim” because the plaintiff’s “claims are devoid of any supporting factual allegations and do not state any legally cogni zable claim against [the defendant].” Def.’s Mem. Supp. Mot. to Dismiss (“Def.’s Mem.”) at 1. The Court eval uates the sufficiency of the factual allegations underlying each of the plaintiff’s claims seriatim below. A. Count I For Declaratory Judgment In Count I, the plaintiff seeks a declarator y judgment, pursuant to D.C. Superior Court Rule of Civil Procedure (“D.C. SCR-Civil Rule”) 57, “that the Deed of Trust is invalid because the House encumbered by the Deed of Trust is owned by [the plaintiff] as a tenant by the5 entirety, and [the plaintiff] did not execute the Deed of Trust.” 2 Compl. ¶¶ 11-12. The defendant seeks to dismiss this claim because a declaratory judgment is a type of relief and cannot form the basis for a separate cause of action. See Def.’s Mem. at 4. D.C. SCR-Civil Rule 57, pertai ning to declaratory judgments, is substantially identical to Federal Rule of Civil Procedure 57 and provides, in pertinent part, that“[t]he procedure for obtaining a declaratory j udgment pursuant to Title 28 U.S.C. § 2201 or otherwise shall be in accordance with these Rules.” Th e use of the phrase “or otherwise” in this local procedural rule is intended to include “authority for issuance of declaratory judgments founded on Congressional grant to the Superior Court of general equity powers,” but “like any other remedy,” a declaratory judgment “may only be granted in cases properly w ithin the court’s jurisdiction.” D.C. Sup. Ct. R. 57 cmt. The Declaratory Judgment Act, 28 U.S.C. § 2201, in turn, authori zes federal courts to grant declaratory relief as a remedy and is not, standing alone, a cause of action. 3 As the defendant correctly notes, “a count for a declarat ory judgment ‘is not cognizable as a separate cause of action, but is more prope rly included in the [ ] prayer fo r relief.’” Def.’s Mem. at 4 (quoting Intelsat USA Sales Corp. v. Juch-Tech, Inc. , 935 F. Supp. 2d 101, 120 (D.D.C. 2013) (citing Walpin v. Corp. for Nat. & Cmty. Serv. , 718 F. Supp. 2d 18, 24 (D.D.C. 2010)); Def.’s Reply Supp. Mot. Dismiss (“De f.’s Reply”) at 1 (same); see also C&E Servs., Inc. of Washington v. D.C. Water & Sewer Auth. , 310 F.3d 197, 201 (D.C. Cir. 2002) (“the Declaratory Judgment Act ‘is not an independent source of federal jurisdiction’” but onl y “presupposes the existence of a judicially remediable right.” (quoting Schilling v. Rogers , 363 U.S. 666, 677 (1960)).

2 The Complaint cites to Superior Rule of Civil Procedur e 55 rather than 57. Compl. ¶ 12. The plaintiff has clarified her intent to refer to Rule 57. Def.’s Mem. at 4; Pl.’s Opp’n to Def.’s Mot. to Dismiss (“Pl.’s Opp’n”) at 3 (“[c]learly [p]laintiff intended to invoke Rule 57 and the relevant citation is a typographical error”). 3 The Declaratory Judgment Act provides, in pertinent pa rt, that “[i]n a case of actual controversy within its jurisdiction . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a).6 The plaintiff concedes that her “request for declaratory relief may be stylistically deficient, [but] it is sufficient to put the Defendant on notice of th e relief sought and the basis for the relief.” Pl.’s Opp’n to Def.’s Mot. to Dismi ss (“Pl.’s Opp’n”) at 4. The relief requested in Count I is “that the Court enter an order declaring that the Deed of Trust is inva lid because the House encumbered by the Deed of Trust is owned by [the plaintiff] as a tenant by the entirety, and Plaintiff did not execute the Deed of Trust.” Compl. ¶ 12. The plain tiff explains that Count I is requesting “the Court to declare the lien on the property, arising from the defendant’s loan, vacated.” Pl.’s Opp’n at 3. In other words, the plaintiff seeks to remove a cloud upon the title to her house to which she and her husband hold fee si mple title, Compl. ¶ 6, which title has been encumbered since 2005 by the defendant’s execu tion and recording of the Deed of Trust, id. ¶¶ 8-9. Thus, in essence, Count I seeks a decl aratory judgment to quiet title, and the Court construes this claim as invoking th e Court’s equitable jurisdiction to resolve the parties’ interests in the plaintiff’s house. “The Supreme Court has he ld that the power to quiettitle is inherent in every court of equity.” In re Tyree , 493 A.2d 314, 317 (D.C. 1985); see also Diaby v. Bierman , 795 F. Supp. 2d 108, 111 (D.D.C. 2011) (“Courts may hear a common law acti on to quiet title to prove title, secure title, ‘or to remove obs tacles which hinder its enjoyment.’”) (quoting Sharon v. Tucker , 144 U.S. 533, 544 (1892)); Black’s Law Dictionary 34 (9th ed. 2009) (defining an “action to quiet title” as a “proce eding to establish a plaintiff’s title to land by compelling the adverse claimant to establish a claim or be forever estopped from asserting it”). Under District of Columbia law, “an action to quiet title may not be dismissed for failure to state a claim when the complaint alleges,” as the plaintiff has in this case, that she is an “owner[] of the land in fee simple ,” and another party has asserted an interest in the property. In re Tyree , 493 A.2d at 317 (citing Goodman v. Wren , 34 App. D.C. 516, 519-20 (D.C. Cir. 1910);7 District of Columbia v. Hufty , 13 App. D.C. 175, 177 (D.C. Cir. 1898) (“It has been held that an allegation that one is seized in fee simple is a sufficient allegation of possession to maintain a bill to remove cloud.”) (citations omitted). The plaintiff further alleges that she and her husband “own the House as tenants by the entireties.” Compl. ¶ 7. “Many jurisdictions have abolished the tenancy by the entireties” but “the District of Columbia still recognizes [this form of ownershi p] ‘with most of its common law features still intact.’” Morrison v. Potter , 764 A.2d 234, 236 (D.C. 2000) (citing In re Wall’s
Estate , 440 F.2d 215, 218 (1971)). When spouses are te nants by the entireties, “each spouse is entitled to the enjoyment and benefits of the whole propert y held by the entireties.” Id. Property held by tenants by the entireties is subject to the spous es’ joint debts as we ll as individual debts of the surviving co-tenant but “it is unreachable by creditors of one but not of both of the
tenants.” Morrison , 764 A.2d at 237; see In re Wall’s Estate , 440 F.2d at 220 (finding that “absent a different treatment by th e [appellees], they held the sa le proceeds as tenants by the entireties in prolongation of their preexisting co-tenancy in the re alty, and held it free from the claims of separate creditors of either”); C unningham, The Law of Property § 5.5, at 206 n. 19 (“one spouse alone cannot convey, encumber, or s ubject to the satisfactio n of creditors’ claims either that spouse’s possessory estate for the jo int lives of the co-tenants or that spouse’s contingent right of survivorship”). A mortgage entered into by one spous e that purports to be secured by property owned by the couple, as tena nts by the entirety, is void because it was not executed by both spouses and creates a cloud upon the title to the property. See 78 A.L.R. 24 (Originally published in 1932) (collecting cases). The plaintiff alleges that she is a tenant by the entirety but executed no documents in connection with the loan taken fr om the defendant by her husband. See Compl. ¶¶ 10, 12. This8 allegation is bolstered by documents submitted by th e defendant to support its motion to dismiss. Specifically, the deed to the house states clearl y that the plaintiff and her husband hold the house in fee simple as tenants by the entireties, see Def.’s Mot, Ex. A, but the Home Equity Loan and Deed of Trust are signed onl y by the plaintiff’s spouse, see Def.’s Mot., Ex. B-C. 4 These factual allegations, corroborated by the documents at issue, sufficiently set out a validclaim to quiet title action since the Deed of Trust, on its face and without resorting to extrinsic evidence, appears to give the defendant a property inte rest in the plaintiff’s house. See Graves v. Ashburn , 215 U.S. 331, 335 (1909) (“It is enough [to sustain a quiet title action] that the invalidity [of the challenged instrument] does not appear upon its f ace, but rests partly on a matter in pais.”); Wilson v. Moseley , 488 S.E.2d 862, 864 (S.C. 1997) (“[a] clo ud on title is a claim which on its face appears valid, but resort to extrinsic evidence will show its invalidity”) (internal quotation marks omitted); see also 65 Am. Jur. 2d Quieting Title § 16 (“Generally, a cloud on title is created by an invalid or inoperative instrument . . . if the invalid ity is not apparent on its face, and will not be revealed in the evidence required to support it, but must be proved by extrinsic evidence.”). Thus, the defendant’s motion to di smiss Count I for failure to state a claim is denied. B. Count II For Fraud The defendant has also moved to dismiss the plaintiff’s fraud claim, in Count II, for failure to “allege with sufficient specificity the essential elements of fraud.” Def.’s Mem. at 5.

4 The Court may consider these documents attached to the defendant’s motion papers without converting the motion to dismiss into a motion for summary judgment since the plaintiff references the same documents in the Complaint. See Compl. ¶¶ 6, 9, 19; EEOC v. St. Francis Xavier Parochial Sch ., 117 F.3d 621, 624-25 (D.C. Cir. 1997) (any documents incorporated by reference in the complaint may be considered under Rule 12(b)(6)); Cause of Action v. Nat’l Archives & Records Admin. , 926 F. Supp. 2d 182, 184-1 85 (D.D.C. 2013) (“Documents that are referenced in, or are an integral part of, the complaint are deemed not 'outside the pleadings’ for purposes of a motion to dismiss for failure to state a claim.”) (internal quotations and citations omitted); Vanover. V. Hantman , 77 F. Supp. 2d 91, 98 (D.D.C. 1999) (“When reviewing a motion under Fed. R. Civ. P. 12(b)(6) . . . [w]here a document is referred to in the complaint and is central to plaintif f’s claim, such a document attached to the motion papers may be considered without converting the motion to one for summary judgment.”).9 To withstand a motion to dismiss for failure to st ate a fraud claim, the pl aintiff must meet the pleading standard set out in Fede ral Rule of Civil Procedure 9( b), which provides that “a party must state with particularity the circumstances constituting fraud or mistake.” F ED
. R. C IV
. P. 9(b). As this rule makes clear, fraud “‘is neve r presumed and must be particularly pleaded.’”
Lee v. Bos , 874 F. Supp. 2d 3, 5 (D.D.C. 2012) (quoting Bennett v. Kiggins , 377 A.2d 57, 59 (D.C. 1977), cert. denied , 434 U.S. 1034 (1978)). This height ened pleading standard is designed to “discourage[] the initiation of suits brought solely for their nuisance value, and safeguard[] potential defendants from frivol ous accusations of moral turpitude ,” as well as “guarantee all defendants sufficient information to allow for preparation of a response.” United States ex rel. Williams v. Martin–Baker Aircraft Co. , 389 F.3d 1251, 1256 (D.C. Cir. 2004). The plaintiff must plead with sufficient particularity the following elements for a viable fraud claim: “‘(1) a false repres entation, (2) in reference to a material fact, (3) made with knowledge of its falsity, (4) with the intent to deceive, and (5) action . . . taken in reliance upon the representation.’” Lee , 874 F. Supp. 2d at 5-6 (quoting Bennett , 377 A.2d at 59); McCarthy v. Cahill , 249 F. Supp. 194, 196 (D.D.C. 1966). Thus, a plai ntiff “must allege with particularity matters such as the time, location and content of the alleged misrepresentations . . . [and] misrepresented facts.” Lee , 874 F. Supp. 2d at 6; see also Busby v. Capital One, N.A. , 932 F. Supp. 2d 114, 139 (D.D.C. 2013) (holding that the complaint did not satisfy the pleading standard of Rule 9(b) because it failed to please the “who, what, when, where, and how” circumstances surrounding the alleged fraud). Finall y, “[t]o prevail, the plai ntiff must also have suffered some injury as a consequence of his reliance on the misrepresentation.” Chedick v. Nash , 151 F.3d 1077, 1081 (D.C. Cir. 1998) (citing Dresser v. Sunderland Apartments Tenants Ass’n, Inc. , 465 A.2d 835, 839 (D.C. 1983)).10 In support of her fraud claim, the plainti ff alleges that: (1) “[the defendant] knew upon recording the Deed of Trust that [the plaintiff] did not execute the Deed of Trust or any other document in connection with the [Home Equity] Loan,” id. ¶ 14; (2) “[the de fendant’s] act(s) in recording the Deed of Trust were willful and malicious,” id. ¶ 15; (3) “[r]ecor ding the Deed of Trust as if [the plaintiff] had executed the n ecessary documents const itutes a fraud upon [the plaintiff],” id. ¶ 16; and (4) “[a]s a direct and proximat e result of [the defendant’s] fraudulent act(s), [the plaintiff] has suffe red consequential damages, economic, and non-economic loss, all to her detriment in the amount of $1,000,000.00,” id. ¶ 17. The defendant contends that these statements are conclusory and thus, “are not entitl ed to an assumption of truth.” Def.’s Mem. at 6. Indeed, the defendant is correct that the plai ntiff “does not identify one single statement made [] to her by [the defendant], much less any fals e representation . . . [n]or does [the plaintiff] allege that [the defendant] intended to d eceive her . . . ” Def.’s Mem. at 6; see Ashcroft v. Iqbal , 556 U.S. 662, 679 (“[A] court considering a mo tion to dismiss can choose to begin by identifying pleadings that, because they are no mo re than conclusions, ar e not entitled to the assumption of truth.”); Kaempe v. Myers , 367 F.3d 958, 963 (D.C. Cir. 2004) (stating that when reviewing a dismissal for failure to state a claim, the court will not accept “legal conclusions cast in the form of factual allegations”) (citations omitted). To the extent the plaintiff’s fraud claim boils down to the contention that the defendant’s execution and recordation of the D eed of Trust amounts to a false re presentation to the plaintiff, the plaintiff has nonetheless wholly failed to alle ge the critical element for a common law fraud claim of her reasonable reliance to her detriment on the defendant’s conduct. See Def.’s Mem. at 6 (noting that plaintiff fa iled to plead “that she reas onably relied on any such misrepresentation”); Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc. , 525 F.3d 8, 2211 (D.C. Cir. 2008) (finding that “we need not discuss the adequacy of [the plaintiff’s] allegations of fraud because [the plaintiff] utterly fails to allege . . . the element of reliance” and “[a] plaintiff may recover for a defenda nt’s fraudulent statement only if the plaintiff took some action in reliance on that statement”); Virginia Acad. of Clinical Psyc hologists v. Grp. Hospitalization & Med. Servs., Inc. , 878 A.2d 1226, 1237 (D.C. 2005) (“A further requirement for fraud is that action be taken in reliance upon the misrepresent ation.”). Accordingly, the plaintiff’s fraud claim is dismissed, without prejudi ce, for failure to state a claim. 5 C. Count III For Negligence Finally, the defendant argues thatthe plaintiff has failed to state a claim for negligence because she has not alleged “that [the defendant] owed her any legal duty of care—let alone how [the defendant] breached any such duty or proxim ately caused her damages.” Def.’s Mem. at 7. The plaintiff, on the other hand, contends that “[t]he very lack of a relationship is the basis for Plaintiff’s negligence claim. ” Pl.’s Opp’n at 5. To establish a negligence claim, “under D.C. law, ‘a plaintiff mustprove a duty of care owed by the defendant to the plaintiff, a breach of that duty by the defendant, and damage to the interests of the plaintiff, pr oximately caused by the breach.’” Sigmund v. Starwood Urban Retail VI, LLC , 617 F.3d 512, 514 (D.C. Cir. 2010) (quoting District of Columbia v. Beretta, U.S.A., Corp. , 872 A.2d 633, 642 n. 3 (D.C. 2005). “Whether a dut y exists is a question of law for the
Court.” Findlay v. CitiMortgage, Inc. , 813 F. Supp. 2d 108, 120 (D.D.C. 2011) (citing Hedgepeth v. Whitman Walker Clinic , 22 A.3d 789, 793 (D.C. 2011)). The Complaint alleges

5 The defendant urges the Court to dismiss with prejudice because granting leave to amend would be futile. See Def.’s Mem. at 6-7. The plaintiff, on the other hand, reque sts that “if the Court finds that Plaintiff’s Complaint falls short of the standard” under Federal Rules of Civil Procedure 9(b) and 12(b)(6), that the Court grant leave to amend. See Pl.’s Opp’n at 6. The sparse and conclusory nature of the allegations supporting the fraud claim make it impossible to determine whether granting leave to amend would be futile. Consequently, Count II is dismissed without prejudice.12 that “[the defendant] was negligent in that it kne w or, through the exercise of due diligence, should have known, that [the plaintiff] did not execute the Deed of Trust or any other document in connection with the [Home Equity] Loan.” Compl. ¶ 19. The plaintiff posits in her opposition that “extend[ing] a loan that purports to bind [the plai ntiff] co-owner of the property at issue, without obtaining the si gnature of [the plaintiff] borrowe r, or exercising due diligence in investigating the lack of signature or, for that matter, the presence of [the plaintiff] borrower at closing” was negligent. Pl.’s Opp’n at 5. The key documents cited in the Complaint and submitted by the defendant in support for its motion, corroborate the plain tiff’s contention that the defenda nt should have known that the property was held in fee simple by the plaintiff and her spouse, as tenants by the entirety, as plainly reflected in the Deed to the house, see Def.’s Mot., Ex. A, and that the plaintiff never signed the Home Equity Loan or the Deed of Trust between Mr. Malek and the defendant, the recording of which documents now encumbers title to the house, see Def.’s Mot., Ex. B-C. Nonetheless, the defendant argues that, since th e plaintiff was not a party to these agreements between the defendant and her spouse, the plai ntiff has not established or alleged how the defendant could owe a “duty to non-customers with whom it has no direct relationship.” Def.’s Reply at 3 (citing Eisenberg v. Wachovia Bank, N.A. , 301 F.3d 220, 225 (4th Cir. 2002) (“a bank does not owe a duty of care to a noncustomer with whom the bank has no direct relationship”)). The plaintiff does not dispute that she “did not enter into a re lationship” with the defendant by choice but, contrary to the defendant’s position, she cont ends this is not fatal to her claim. The defendant fails to appreciate that the gravamen of the negligence claim is that the defendant’s negligent conduct created a relationship between the pl aintiff and the defendant. See Pl.’s Opp’n at 6 (“Defendant created a relationshi p [with the plaintiff] when it recorded the Deed13 of Trust encumbering Plaintiff’s prope rty.”). In other words, assuming, arguendo, that the Deed of Trust validly encumbers the title to the plaintiff’s house, the de fendant has created a relationship with the plaintiff by making the plaintiff’s interest in her own house subject to the defendant’s interest in the same property. Even if the plaintiff’s theory were cognizable that the defe ndant was negligent in placing an invalid encumbrance on her house, the plain tiff has utterly failed to provide any factual allegations about how, over the past eight years, she suffered any damages, let alone damages in the amount of $1,000,000, as a proximate cause of the defendant’s breach of any duty owed to her, even assuming such a duty existed. This is a clear missing element of the plaintiff’s negligence claim that requires dismissal, without prejudice, of Count III 6
IV. CONCLUSION Accordingly, the defendant’s motion to dismiss the complaint, pursuant to Federal Rule 12(b)(6) for failure to state a claim, is denied as to plaintiff’s declaratory judgment claim to quiet title (Count I), and granted as to the plaintiff’s claims for fra ud (Count II) and negligence (Count III), which two counts are dism issed without prejudice. An Order consistent with this Memorandum Opinion will be contemporaneously entered.

Date: September 29, 2014

__________________________ BERYL A. HOWELL United States District Judge

6 Indeed, if the plaintiff is correct th at the Deed of Trust is invalid, then, ironically, it is the defendant, not the plaintiff, who may face ha rm because the security for the Home Equity Loan will be compromised. See Kay v. Fowler , 587 F. Supp. 720, 723 (D.D.C. 1984) (where lender made loan to husband. with forged signature of wife, lender “could not reach the real property owned by [husband and plaintiff wife] because it was owned by them as tenants by the entireties” (citing In re Estate of Wall , 440 F.2d at 215 (1971)).