UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA WANDA BUSBY, : : Plaintiff, : Civil Action No.: 10-1025 (RMU) : v. : Re Document Nos.: 6, 8 : CAPITAL ONE, N.A. et al. , : : Defendants. : MEMORANDUM OPINION G RANTING C APITAL O NE ’ S M OTION TO D ISMISS ; G RANTING P RENSKY ’ S M OTION TO P ARTIALLY D ISMISS I. INTRODUCTION The pro se plaintiff, Wanda Busby, has asserted a variety of statut ory and common law claims against the defendants, Capital One, N. A. (“Capital One”) and attorney David Prensky (“Prensky”), in connection with a promissory note and deed of trust executed by the plaintiff in 1996. Capital One has moved to dismiss all of the claims against it pursuant to Federal Rule of Civil Procedure 12(b)(6). Prens ky has also filed a motion pursuan t to Rule 12(b)(6) to dismiss all but two of the claims asserted against him. As discussed below, the plaintiff has failed to allege plausible claims for relief with respect to the claims addressed in the defendants’ motions. The court therefore grants the defendants’ motions.

II. FACTUAL & PROCEDURAL BACKGROUND In December 1996, the plaintiff purchased a property located in Northwest Washington, D.C. Am. Compl. ¶¶ 7, 19. To finance the pu rchase, the plaintiff obtained a $207,000 loan from the B.F. Saul Mortgage Company (“B.F. Saul”). Id. ¶ 19 & Ex. B. The loan was documented by2 a promissory note (“the Note”), id. ¶ 19; Capital One’s Mot., Ex. A, and secured by a deed of trust (“the Deed of Trust”), Am. Compl., Ex. B. Both instruments were filed with the D.C. Recorder of Deeds on December 24, 1996. Am. Comp l. ¶ 19. B.F. Saul subsequently assigned its rights under the Note to Chevy Chase Bank, F.S.B. (“Chevy Chase”). Capital One’s Mot.,
Ex. A. By early April 2010, the plaintiff had fallen three months behind on her loan payments. Am. Compl. ¶ 32. The plaintiff “contacted Capital One, the apparent loan servicer, in order to bring her payments up to date.” Id. During a conversation with a Capital One representative, the plaintiff learned that there was, according to Ca pital One, “a sizable underpayment of her escrow
account.” Id. The plaintiff formally disputed thes e amounts and offered to pay all overdue amounts of principal and in terest pending resolution of the escrow dispute. Id. ¶ 34. Capital One, however, rejected this offer. Id. On April 12, 2010, the defendants sent the plai ntiff a notice of foreclosure sale (“the Notice”), advising her that she owed $168,842.38 on her note and th at her property would be sold at a foreclosure sale on May 19, 2010. Am . Compl., Ex. C. The Notice identified the holder of the note as “Capital One NA.” Id. The Notice further stated that in the event the plaintiff wished to stop the foreclos ure sale, she should contact Prensky, id. , who had purportedly been appointed to act as trustee pursuant to a deed of appointment of substitute trustee (“the Deed of Appointment”) executed on December 1, 2009, Am. Compl., Ex. B. Both the Notice and the Deed of Appointment were filed with the D.C. Recorder of Deeds on April 14, 2010. Am. Compl. ¶ 47. On May 18, 2010, the plaintiff commenced this action against the defendants in the Superior Court of the District of Columbia. See generally Compl. After being served with the3 complaint, Prensky informed the plaintiff that Capital One had agreed to cancel the foreclosure sale scheduled for May 19, 2010. Am. Compl. ¶¶ 93-94. Prensky, however, left open the possibility that the foreclosure sale w ould be rescheduled at a later date. Id. ¶¶ 95-96. The plaintiff filed an amended complaint in the Superior Court on June 9, 2010. See generally id. In the amended complaint, the plainti ff alleges that the Notice was fraudulent and ineffective because it misrepresented Capital One as the holder of the note, when, in reality, Capital One was acting, at best , as the loan servicer. Id. ¶¶ 24, 40-45, 49-52, 98-102. The plaintiff contends that under both the terms of the Deed of Trust a nd as D.C. law, a loan servicer lacks the authority to commence foreclosure pro ceedings against a borrower like the plaintiff. Id. The plaintiff also alleges that in the Noti ce, the defendants misrepresented the amounts owed by the plaintiff. Id. ¶¶ 32-35; 123-24. In addition, the plaintiff claims that the Deed of Appointment is fraudulent and ineffective. Id. ¶¶ 25, 47-48, 54-79. The plain tiff asserts that there are errors in the notarization on the form, id. ¶¶ 58-68, and that although the Deed of Appointment was executed by an individual on behalf of Chevy Chase on December 1, 2009, Chevy Chase had merged with Capital One four months earlier and therefore did not exist as of the date the Deed of Appointment was executed, id. ¶¶ 70-75. In her ten-count amended complaint, the pl aintiff asserts a variety of statutory and common law 1 claims against the defendants. Id. ¶¶ 113-234. Specifically, the amended complaint contains the following claims: fraud (Count I); breach of fiduciary duty (Count II); violations of the D.C. Interest Rate Ceil ing Amendment Act (“D.C. Usury Statute”), D.C. C ODE § 28-3312, and the D.C. Consumer Protec tion Procedures Act (“CPPA”), D.C. C ODE § 28-3904

1 There is no dispute that D.C. law govern s the plaintiff’s common law claims. See generally Capital One’s Mot. to Dismiss; Prensky’s Mot. to Dismiss; Pl.’s Opp’n.4 (Count III); conversion (Count IV ); violations of the Racket eer Influenced and Corrupt Organization Act (“RICO”), 18 U.S.C. §§ 1961 et seq. (Counts V-VII); neg ligence (Count VIII); unconscionability, bad faith and unf air dealing (Count IX); and “em otional distress” (Count X) Id. Aside from the breach of fiduciary duty cla im (Count II), which is asserted only against Prensky, id. ¶¶ 116-19, and the D.C. Usury Statute clai m (Count III), which is asserted only against Capital One, id. ¶¶ 123, each claim is asserted against both defendants. The defendants removed this action to this court on June 17, 2010. See generally Notice of Removal. On July 16, 2010, Capital One and Pr ensky separately filed motions to dismiss the amended complaint pursuant to Rule 12(b)(6). See generally Capital One’s Mot.; Prensky’s Mot. Capital One seeks the dismissal of all the claims asserted against it. See generally Capital One’s Mot. Prensky has moved to dismiss all of the claims against him except the breach of fiduciary duty and negligence claims. See generally Prensky’s Mot. The plaintiff filed an omnibus opposition to both motions on February 14, 2011, 2 see generally Pl.’s Opp’n, and the defendants filed separate replies on February 25, 2011, see generally Capital One’s Reply; Prensky’s Reply.

III. ANALYSIS A. Legal Standard for a Rule 12(b)(6) Motion to Dismiss A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint need only set forth a short and plain statement of the claim, giving the defendant fa ir notice of the claim and the grounds upon which

2 Briefing on the defendants’ motions to dismiss was stayed pending resolution of the plaintiff’s motion to remand this case to the Superior Court of the District of Columbia. Minute Order (Sept. 10, 2010). The court ultimately denied the plaintiff’s motion. See generally Mem. Op. (Jan. 6, 2011).5 it rests. Kingman Park Civic Ass’n v. Williams , 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing
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. P. 8(a)(2) and Conley v. Gibson , 355 U.S. 41, 47 (1957)). “Such simplified notice pleading is made possible by th e liberal opportunity for discove ry and the other pretrial procedures established by the Rules to disclo se more precisely the basis of both claim and defense to define more narrowly th e disputed facts and issues.” Conley , 355 U.S. at 47-48 (internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of his prima facie case in the complaint, Swierkiewicz v. Sorema N.A. , 534 U.S. 506, 511-14 (2002), or “plead law or match facts to every element of a legal theory,” Krieger v. Fadely , 211 F.3d 134, 136 (D.C. Cir. 2000) (internal quotation marks and citation omitted). Yet, “[t]o survive a motion to dismiss, a co mplaint must contain sufficient factual matter, accepted as true, to state a claim to re lief that is plausible on its face.” Ashcroft v. Iqbal , 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted); Bell Atl. Corp. v. Twombly , 550 U.S. 544, 562 (2007) (abrogating the oft-quoted language from Conley , 355 U.S. at 45-46, instructing courts not to dismiss for failure to state a cl aim unless it appears beyond doubt that “no set of facts in support of his cl aim [] would entitle him to relief”). A claim is facially plausible when the pleaded factual content “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal , 129 S. Ct. at 1949 (citing Twombly , 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id . (citing Twombly , 550 U.S. at 556). In resolving a Rule 12(b)(6) motion, the c ourt must treat the complaint’s factual allegations – including mixed questions of law and fact – as true and draw all reasonable inferences therefrom in the plaintiff’s favor. Holy Land Found. for Relief & Dev. v. Ashcroft ,6 333 F.3d 156, 165 (D.C. Cir. 2003); Browning , 292 F.3d at 242. While many well-pleaded complaints are conclusory, the court need not acce pt as true inferences unsupported by facts set out in the complaint or legal conclu sions cast as factual allegations. Warren v. District of Columbia , 353 F.3d 36, 39 (D.C. Cir. 2004); Browning , 292 F.3d at 242. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal , 129 S. Ct. at 1949 (citing Twombly , 550 U.S. at 555). B. The Court Grants the Defendants’ Motions to Dismiss the Amended Complaint 1. Count I: Fraud The plaintiff appears to base her fraud clai ms on Capital One’s alleged misrepresentation that it was the holder of the note and that it had the authority to institute foreclosure proceedings against the plaintiff, Capital One’s alleged mi srepresentations regard ing the amounts owed by the plaintiff and the alleged mi srepresentations by Capital One and Prensky that Prensky was authorized to act as trustee on behalf of the note holder in foreclosure proceedings. See Am. Compl. ¶¶ 24-25, 40-79, 98-102, 123-24. According to the plaintiff, these misrepresentations appear in the Notice and the Deed of Appointment. See id. Both Capital One and Prensky contend that th e plaintiff has failed to state a viable claim for fraud because she has not alleged that she re lied on these allegedly fr audulent representations to her detriment, as required to st ate a claim for fraud under D.C. law. 3 Capital One’s Mot. at 8- 9; Prensky’s Mot. at 5-6. Capital One also argue s that that the plainti ff has alleged no facts to support her contention that Capi tal One misrepresented the am ounts owed by the plaintiff. Capital One’s Mot. at 9-12. The plaintiff maintain s that she has properly st ated a claim for fraud,

3 Capital One also argues that the allegedly fra udulent misrepresentations on which the plaintiff bases her claim are not material. Capital One’s Mo t. at 9-12. Because the court concludes that the plaintiff has failed to adequately plead detrim ental reliance, it does not reach this alternative argument.7 asserting that the amended complaint addresses the essential elements of a fraud claim under D.C. law. Pl.’s Opp’n at 16-22. In addition, th e plaintiff contends that her amended complaint contains a claim of conspiracy to commit fraud, which is properly pled and not addressed in the defendants’ motions. Id. at 13-14. Under D.C. law, “[t]he essential elem ents of common law fraud are: (1) a false representation (2) in reference to material fact, (3) made with knowledge of its falsity, (4) with the intent to deceive, and (5) action is taken in relia nce upon the representation.” Fort Lincoln Civic Ass’n, Inc. v. Fort Lincoln New Town Corp. , 944 A.2d 1055, 1074 n.22 (D.C. 2008) (quoting Bennett v. Kiggins , 377 A.2d 57, 59-60 (D.C. 1977)). To prevail on such a claim, “the plaintiff must also have suffered some inju ry 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)). Furthermore, Federal Rule of Civil Procedur e 9(b) requires that a claimant state with particularity the circumstan ces constituting fraud. F ED

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. P. 9(b). The claimant must plead with particularity matters such as the time, place and content of the false misrepresentations, the misrepresented fact and what the opponent retained or the claimant lost as a consequence of the alleged fraud. United States ex rel. Williams v. Martin-Baker Aircraft Co. , 389 F.3d 1251, 1256 (D.C. Cir. 2004) (citing Kowal v. MCI Commc’ns, Corp. , 16 F.3d 1271, 1278 (D.C. Cir. 1994)). This heightened pleading standard “discourage[s] the initiation of suits brought solely for their nuisance value, and safeguards potential defe ndants from frivolous accusations of moral turpitude.” Id. (quoting United States ex rel. Joseph v. Cannon , 642 F.2d 1373, 1386 (D.C. Cir. 1981)). Furthermore, “because ‘fraud’ enco mpasses a wide variety of activities, the requirements of Rule 9(b) guarantee all de fendants sufficient information to allow for8 preparation of a response.” Id. The plaintiff first suggests that the reliance element needed to establish her fraud claim is satisfied by her allegation that th e D.C. Recorder of Deeds and ot her third parties relied on the misrepresentations made in the Notice and Deed of Appointment. Pl.’s Opp’n at 17. Yet under D.C. law, “[a] plaintiff may recover for a defendant’s fraudulent statement only if the plaintiff took some action in reliance on that statement.” Aktieselskabet AF 21. Nov. 2001 v. Fame Jeans
Inc. , 525 F.3d 8, 22-23 (D.C. Cir. 2008) (affirming the dismissal of the plaintiff’s fraud claim because rather than suggesting its own reliance, th e plaintiff alleged only that the United States Patent and Trademark office relied on the defendant’s alleged misrepresentation (citing Va. Acad. of Clinical Psychologists v. Grp. Hospitalization & Med. Servs., Inc. , 878 A.2d 1226, 1237-38 (D.C. 2005) (emphasis added))). Thus, the plaintiff’s allegations concerning actions taken by the D.C. Recorder of Deeds or any othe r third parties cannot, st anding alone, satisfy the detrimental reliance element required for fraud claims under D.C. law. The plaintiff also contends that she relied to her detriment on the defendants’ fraudulent statements by consulting legal counsel. Pl.’s Opp’n at 17. This allegation, however, does not appear in the amended complaint. See generally Am. Compl.; see also Middlebrooks v. Godwin Corp. , 722 F. Supp. 2d 82, 87 n.4 (D.D.C. 2010) (observi ng that a plaintiff “may not amend her complaint by the briefs in opposition to a motion to dismiss” (citing Calvetti v. Antcliff , 346 F. Supp. 2d 92, 107 (D.D.C. 2004))). Furthermore, even if this allegation were considered part of the plaintiff’s pleadings, it has no t been pled with the requisite specificity, as the plaintiff has offered no indication of what steps she took to consult with legal counsel or what costs she incurred as a result. See Pl.’s Opp’n at 17. Finally, even if th e plaintiff had alleged that she had offered some factual allegation to substantiate her claim of loss, it is far from clear that the cost9 of legal services can constitute detrimental re liance for purposes of fraud, given the American Rule against fee shifting. See Oliver T. Carr Co. v. United Tech. Commc’n Co. , 604 A.2d 881, 883 (D.C. 1992) (“[T]his jurisdiction follows ‘the American Rule under which . . . every party to a case shoulders its own attorneys’ fees, and recovers from other litigants only in the presence of statutory authority, a contra ctual arrangement, or certain narrowly-defined common law exceptions’ such as the conven tional ‘bad faith’ exception.” (i nternal quotation marks omitted) (quoting Dalo v. Kivitz , 596 A.2d 35, 37, 39 (D.C. 1991)); see also Sloan v. Urban Title Servs.,
Inc. , 689 F. Supp. 2d 94, 121 (D.D.C. 2010) (holding that a party asserting fraud “must provide legal authority in support of his appa rent claim that he is entitled to attorney’s fees and costs”). Accordingly, the plaintiff’s assertion in her oppos ition that she consulted legal counsel as a result of the defendants’ fraudulent representations does not satisfy the detrimental reliance requirement. Lastly, the plaintiff contends that she relied on the defendants’ misstatements regarding escrow amounts owed and other penalties due “b y paying some of the amounts demanded.” Pl.’s Opp’n at 17 (citing Am. Compl. ¶¶ 125-26, 141, 182, 184). This allegation, however, falls well short of Rule 9(b)’s heightened pleading standard , as the plaintiff does not offer any indication of when she paid these fees or what amounts she paid. See Am. Compl. ¶¶ 125-26, 141, 182-84. In fact, the amended complaint indicates that afte r the defendants filed th e Notice and Deed of Appointment, which contained the al legedly fraudulent statements at issue, the plaintiff did not make any additional payments to Capital One. See id. ¶¶ 32-35. Rather, it a ppears that when the plaintiff states that she “pa[ id] some of the amounts demande d,” Pl.’s Opp’n at 17, she is referring to the fact that before the defendants’ filed the Noti ce and Deed of Appointment, she had made payments toward her loan that Capi tal One had applied to her purported escrow10 balance and other penalty charges, see Am. Compl. ¶ 182 (“Plaintiff’s payments, upon information and belief, [and] the payments of other D.C. homeowners, were applied to overcharges, with Capital One misappropriating the amounts overcharged.”). These payments, however, were made before the defendants’ alle ged misrepresentations and plainly were not taken in reliance on them. 4 Thus, the plaintiff’s allegation regarding the payment of erroneous charges does not support her claim of detrim ental reliance on the defendants’ allegedly fraudulent statements. The plaintiff’s failure to plead that she took any steps in reasonable reliance on the defendants’ fraudulent statements warra nts dismissal of her fraud claim. See Aktieselskabet AF 21. Nov. 2001 , 525 F.3d at 22-23. Nonetheless, the plain tiff asserts that such a finding does not preclude her from proceeding with a claim of cons piracy to commit fraud. Pl.’s Opp’n at 13-14; see also Am. Compl. ¶ 114. As a threshold matter, however , it is hardly clear that a plaintiff can proceed with a claim for conspiracy to commit fr aud in the absence of a viable underlying fraud claim. See Hill v. Medlantic Health Care Grp. , 933 A.2d 314, 334 (D.C. 2007) (observing that civil conspiracy “is not an independent tort but only a means for establishing vicarious liability for an underlying tort” (quoting Paul v. Howard Univ. , 754 A.2d 297, 310 (D.C. 2000))); Ali v. Mid-Atlantic Settlement Servs., Inc. , 640 F. Supp. 2d 1, 9 (D.D.C. 2009) (holding that the entry of summary judgment for the defendant on the plai ntiff’s fraud claim required dismissal of the plaintiff’s conspiracy to commit fraud claim because “civil conspiracy depends on performance

4 Furthermore, the amended complaint contains no indication of why the escr ow charges and other penalty fees assessed by Capital One were erroneous. See generally Am. Compl. The absence of such allegations renders the plaintiff’ s fraud claim deficient under Rule 9(b). See Skypala v. Mortg. Elec. Registration Sys., Inc. , 655 F. Supp. 2d 451, 458 (D.N.J. 2009) (concluding that the plaintiff failed to state a fraud claim based on allegedly unwarranted “Late Charges” and other charges demanded by the defendant because the plaintiff had offered no explanation for its assertion that these charges were unwarranted).11 of some underlying to rtious act” (quoting Exec. Sandwich Shoppe, Inc. v. Carr Realty Corp. , 749 A.2d 724, 738 (D.C. 2000))); but see Wiggins v. Dist. Cablevision, Inc. , 853 F. Supp. 484, 498 n.27 (D.D.C. 1994) (“Often when a claim for fraud fails for lack of the requisite elements, courts will search to find evidence of a conspiracy to defraud.” (citing Higgs v. Higgs , 472 A.2d 875, 877 (D.C. 1994))). At any rate, in order to state a civil conspi racy claim under D.C. la w, the plaintiff must allege “(1) an agreement between two or more pe rsons (2) to participate in an unlawful act, and (3) injury caused by an unlawful overt act perfor med by one of parties to the agreement, and in furtherance of the common scheme.” Hill , 933 A.2d at 334. Here, the plaintiff has offered no factual allegations whatsoever indicating the exis tence of an agreement between Capital One and Prensky. See generally Am. Compl. Rather, th e plaintiff’s conspiracy claim is grounded on the bare, conclusory assert ion that the defendants “conspired to commit, and did commit fraud, on which Plaintiff relied to her detriment.” Id. ¶ 114. Such an allegation, unadorned by any substantiating factual allegations, is insuffici ent to state a viable conspiracy claim. See Kissi v. Panzer , 664 F. Supp. 2d 120, 126 (D.D.C. 2009) (holding th at the plaintiff’s allegation that the defendants “conspired to rip off him and his spouse” were insufficient to state a claim for conspiracy to commit fraud); Brady v. Livingood , 360 F. Supp. 2d 94, 104 (D.D.C. 2004) (concluding that the plaintiff’ s allegation that the defendant s “agreed among themselves” to engage in tortious conduct wa s insufficient to state a viable civil conspiracy claim). Accordingly, the plaintiff has failed to state a cognizable claim for conspiracy to commit fraud, just as she failed to state a cognizable claim for fraud. The court therefore grants the defendants’ motions to di smiss these claims.12 2. Count III: D.C. Statutory Claims a. The Plaintiff’s Claim Under the D.C. Usury Statute The plaintiff alleges that Capital One violated the D.C. Us ury Statute “by both misrepresenting material facts and failing to st ate material facts.” Am. Compl. ¶122. Although the plaintiff does not specify the misrepresentatio ns and omissions on which she bases this claim, see id. , it appears that the plaintiff rests her D.C. Usury Statute claim on the same allegedly fraudulent statements unde rlying her fraud claim, see id. ¶¶ 24-25, 40-79, 98-102, 120-29. Capital One contends that th e plaintiff has failed to stat e a claim under the D.C. Usury Statute because the statute applies only to “lende rs” and not loan servicer s. Capital One’s Mot. at 12-13. Capital One further contends that to the extent the plaintiff premises this claim on allegedly unwarranted escrow fees and other charges demanded by Capital One, the plaintiff has offered no explanation for why these fees were unauthorized, overstated or otherwise improper. Id. at 13. The plaintiff responds that Capital One constitutes a “lender” fo r purposes of the D.C. Usury Statute and that Capital One violated the statute by making material misrepresentations to the plaintiff. Pl.’ s Opp’n at 23-24. The D.C. Usury Statute provides that “[i]t shall be a viola tion of this chapter for any lender to” engage in certain specified conduct, incl uding “misrepresent[ing] as to a material fact” and “fail[ing] to state a material fact.” D.C. C ODE § 28-3312. By its terms, the statute applies only to “lenders.” See id. ; see also Young v. 1st Am. Fin. Servs. , 992 F. Supp. 440, 444 & n.7 (D.D.C. 1998) (dismissing the plaintiffs’ claim unde r the D.C. Usury Statute because the statute applies only to lenders and not brokers like the defendant, not withstanding the plaintiffs’ allegation that the defendant fr audulently led them to believe that it was acting as the lender rather than the broker).13 In the amended complaint, the plaintiff repeatedly asserts that Capital One was not the lender in the underlying loan transaction. See, e.g. , Am. Compl. ¶¶ 32, 97. Indeed, the plaintiff’s fraud claim is premised in significan t part on the assertion that Capital One falsely represented itself as the holder of the Note. See supra Part III.B.1. Although the plaintiff asserts in her opposition brief that Capital One functioned as a “lender” for purposes of the D.C. Usury Statute, she provides neither any authority nor any cogent argument in support of this assertion.
See Pl.’s Opp’n at 23-24. Accordingly, the cour t dismisses the plaintiff’s claim asserting violations of D.C. Usury Statute. b. The Plaintiff’s CPPA Claim The plaintiff alleges that th e defendants violated the CPPA by misrepresenting material facts in connection with the plaintiff’s loan obligations. Am. Compl. ¶¶ 121, 123. Again, this claim appears to be based on the same alleged mi srepresentations underlyi ng the plaintiff’s fraud claim. See id. ¶¶ 24-25, 40-79, 98-102, 120-29. Both Capital One and Prensky contend that the plaintiff’s CPPA claim fails because the plaintiff was not a “consumer” of goods or services provided by either defendant. 5 Capital One’s Mot. at 14-15; Prensky’s Mot. at 6-7. The plaint iff maintains that the CPPA gives rise to a claim against Capital One because the statute applies to mortgage transactions and Capital One held itself out to be the mortgagee. Pl.’s Opp’n at 25-26. The plaintiff also argues that she has stated a CPPA claim against Prensky – despite the fact that Prensky did not provide any legal services to her – because he engaged in unethical conduc t by falsely holding himself out as the trustee under the Deed of Appointment. Id. at 27-28.

5 Although Capital One has also pointed out a num ber of additional purported deficiencies in the plaintiff’s CPPA claim, Capital One’s Mot. at 15-16, the court does not reach these alternative arguments because the amended complaint fails to allege the existence of a consumer-merchant relationship.14 The CPPA prohibits a wide variety of d eceptive trade practices perpetrated against
consumers. D.C. C ODE § 28-3904. The practices prohi bited by the statute include misrepresenting the existence of a sponsorship or affiliation, misrepresenting a material fact which has the tendency to mislead and failing to st ate a material fact which has the tendency to mislead. Id. § 28-3904(b), (e), (f). “The purpose of the CPPA is to protect consumers from a broad spectrum of unscrupulous practices by mercha nts, therefore the stat ute should be read broadly to assure that the purposes are carried out.” Modern Mgmt. Co. v. Wilson , 997 A.2d 37, 62 (D.C. 2010). Despite its broad reach, the CPPA applies only to consumer-merchant relationships. Snowder v. Dist. of Columbia , 949 A.2d 590, 599 (D.C. 2008) (obser ving that the CPPA “was designed to police trade practices arising only out of consumer-m erchant relationships” (quoting Howard v. Riggs Nat’l Bank , 432 A.2d 701, 709 (D.C. 1981))). The statute defines a “consumer” as “a person who does or would purch ase, lease (from), or receive consumer goods or services . . . or a person who does or would provide the economic demand for a trade practice.” Id. § 28-3901(a)(2). A “merchant” is define d as “a person who does or would sell, lease (to), or transfer, either di rectly or indirectly, consumer goods or services, or a person who does or would supply the goods or services which are or would be the subject matter of a trade practice.” Id. § 28-3901(a)(3). Here, the amended complaint contains no f actual allegations whatsoever indicating the existence of a consumer-merchant relationship between the plaintiff and either defendant. See generally Am. Compl. The plaintiff has identifie d no goods or services she purchased or received from Capital One or Prensky. See generally id. ; see also Ali v. Tolbert , 2011 WL 691364, at *5 (D.C. Cir. Mar. 1, 2011) (holding that an individual who faci litated a residential15 property transaction was not a “merchant” for CPPA purposes because there was “no evidence that he supplied, or held himsel f out as a person who would supply any goods or services to the purchaser in connection with her ownership or sa le of the house”). Although the plaintiff notes that the CPPA applies to lenders in residential mortgage transactions, see Ihebereme v. Capital One, N.A. , 730 F. Supp. 2d 40, 50-53 (D.D.C. 2010), as previously discussed, the plaintiff has alleged here that Capital One was not the lend er and that its role in the lender-borrower relationship was limited to serving as the loan servicer, at best, see Am. Compl. ¶¶ 32, 97. Accordingly, the court dismisses the plain tiff’s CPPA claim agai nst both defendants. 3. Count IV: Conversion The plaintiff alleges that the defendants “engaged in conve rsion by asserting ownership over the Note and [Deed of Trust], including, but not limited to, the power of sale provisions within the [Deed of Trust].” 6 Am. Compl. ¶ 131. The defendants argue that the plaintiff’s allegations do not give rise to a plausible conversion claim because, among other reasons, the plaintiff is not the owner of allegedly converted property and there has been no dispossession of the plaintiff’s property rights. Capital One’s Mo t. at 17-18; Prensky Reply at 8. The plaintiff maintains that she has asse rted a viable claim of c onversion, contending that the misappropriation of notes, titles and deeds can give ri se to a claim of conver sion and that even if she is not the owner of the Note or the Deed of Trust, she has an interest in those instruments. Pl.’s Opp’n at 28-33. Under D.C. law, the elements of conversi on are “(1) an unlawful exercise, (2) of

6 According to the plaintiff, “Capital One’s c onversion scheme began when it caused its employees to assert falsely that [Chevy Chase], a defunct cor poration, owned the Note and [Deed of Trust]” and then later, “in its own right, asserted ownership over the Note and the [Deed of Trust].” Am Compl

. ¶ 132. The plaintiff also alleges that “[b] y filing the Fraudulent Notice . . . and Forged Deed [of Appointment], Prensky also asserted ow nership over the Property under the [Deed of Trust].” Id. ¶ 133.16 ownership, dominion, or control, (3) of the personal property of another, (4) in denial or repudiation of that person ’s rights thereto.’” O’Callaghan v. Dist. of Columbia , 741 F. Supp. 273, 279 (D.D.C. 1990) (citing Duggan v. Keto , 554 A.2d 1126, 1137 (D.C. 1989)). According to the plaintiff, her conversion claim is gr ounded on the defendants’ misappropriation of her “beneficial interest in both the Property a nd the Deed of Trust.” Pl.’s Opp’n at 30; see also Am. Compl. ¶¶ 131-33. The plaintiff is mistaken. The Deed of Trust is a secu rity instrument given by the plaintiff for the benefit of the lender. See generally Am. Compl., Ex. B. The authorities relied on by the plaintiff stand only for the pr oposition that the mortgagor has a beneficial interest in the underlying propert y securing the transaction, not in the deed of trust itself. See,

e.g. , Democratic Cent. Comm. of Dist. of Colu mbia v. Wash. Metro. Area Transit Comm’n , 21 F.3d 1145, 1153 (D.C. Cir. 1994) (observi ng that legal title of propert y held under a deed of trust lies with the trustee, while equitabl e title rests with the debtor). The plaintiff also attempts to base her conversion claim on the defendants’ alleged interference with her right to have the Deed of Tr ust returned to her once she has repaid the loan in full. Pl.’s Opp’n at 31. Indeed, as the plai ntiff points out, courts in other jurisdiction have permitted conversion claims to proceed based on the mortgagor’s refusal to return a deed of trust to the mortgagee after fully satisfy ing his or her loan obligations. See, e.g. , Save Charleston v. Murray , 333 S.E.2d 60, 66 (S.C. Ct. App. 1985); Rose v. Tilden Lumber & Mill Co. , 14 P.2d 137, 137-38 (Cal. App. 1932). In this case, however , the amended complaint makes clear that the plaintiff has not been satisfied her underlying debt, see Am. Compl. ¶ 32, and that the plaintiff has no right to the re turn of the Deed of Trust, cf. Rose , 14 P.2d at 137-38 (observing that the conversion “took place immediately upon appellant’s assumption of ownership following the payment of the original obligation”). Accordingly, the plaintiff’s right to have the17 Deed of Trust returned upon the sa tisfaction of her loan obligations does not give rise to viable conversion claim. Lastly, the court notes that “an action for c onversion is recognized only when a defendant has unlawfully exercised ‘ownership, dominion or control over the personal property of another in denial or repudiation of his rights thereto.’” Kaempe v. Myers , 367 F.3d 958, 964 (D.C. Cir. 2004) (quoting Shea v. Fridley , 123 A.2d 358, 361 (D.C. 1956)). “When there has been no dispossession of property rights, ther e can be no action for conversion.” Id. Here, the amended complaint contains no allegations indicating th at the actions taken by the defendants have dispossessed the plaintiff of any right she curr ently possesses in the property or the Deed of
Trust. See generally Am. Compl. Accordingly, the plainti ff’s conversion claim is deficient in this respect as well, and the court grants the defendants’ motion to dismiss this claim. 4. Counts V, VI and VII: RICO Counts V, VI and VII of the amended complain t set forth alternative civil RICO claims.
See Am. Compl. ¶¶ 136-210. The thrust of these cl aims is that the defendants engaged in a fraudulent scheme, involving mail fraud, wire fra ud and witness tampering, to misappropriate the plaintiff’s interest in the Deed of Trust and unjustifiably force the foreclosure sale of her property. See id. Both Capital One and Prensky contend th at the plaintiff has not stated a viable RICO claim because she has not pled the exis tence of a pattern of racketeering activity. 7 Capital One’s Mot. at 20-23; Prensky’s Mot. at 8-9. The plaintiff maintains that she has properly pled a pattern of racketeering activity based on her al legations of mail and wire fraud and witness

7 Capital One also argues that the plaintiff’s allegations of mail fraud, wire fraud and witness tampering are too conclusory to support a RICO cl aim and that the plainti ff has not properly pled that she suffered injury as a result of the alleged RICO violation. Capital One’s Mot. at 18-20, 23-25. Because the court dismisses the plainti ff’s RICO claims based on other deficiencies pointed out by the defendants, it does not reach this additional argument.18 tampering. Pl.’s Opp’n at 37-41. To establish a RICO violation, the plaintiff must show “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” W. Assocs. Ltd. P’ship v. Market Square
Assocs. , 235 F.3d 629, 633 (D.C. Cir. 2001) (citing 18 U.S.C. § 1961(1)(B)). The RICO statute defines the term “pattern of racketeering activit y” as requiring the comm ission of at least two predicate racketeering offe nses over a ten year period. 18 U.S.C. § 1961(5). Predicate offenses satisfying the statute include act s punishable under certain state and federal criminal laws, such as mail and wire fraud. Id. § 1961(1)(B). To satisfy the “p attern of rack eteering activity” requirement, the plaintiff must esta blish that the predicate acts “ar e related, and that they amount to pose a threat to continued criminal activity.” H.J. Inc. v. Nw. Bell Tel. Co. , 492 U.S. 229, 239 (1989). It is well established that a “single scheme . . . designed to frustrate one transaction and inflict[] a single, discrete injury on a small nu mber of victims . . . fails to meet RICO’s requirement of a ‘pattern of racketeering activity.’” Edmondson & Gallagher v. Alban Towers
Tenants Ass’n , 48 F.3d 1260, 1263 (D.C. Cir. 1995) (holding th at the plaintiff’s allegation that a tenant’s association engaged in a scheme to unl awfully block the sale of a residential building complex failed to state a RICO claim because “the scheme entail[ed] but a single discrete injury, the loss of the sale . . . suffered by a small number of victims” and that “the combination of these factors (single scheme, single injury, and few vic tims) makes it virtually impossible for plaintiffs to state a RICO claim”); see also W. Assocs. Ltd. P’ship , 235 F.3d at 633 (affirming the dismissal of the plaintiff’s RICO claims because the defendant’s alleged misconduct, which included “concealing cost overruns or sh ifting the burden of financing them,” was “more accurately characterized as a single effort to diminish the value of [the plaintiff’s] partnership interest”);19 Zernik v. United States , 630 F. Supp. 2d 24, 27 (D.D.C. 2009) (d ismissing the plaintiff’s civil RICO claim for failure to plead a “pattern of racketeering activity” because the plaintiff’s allegations amounted to a single scheme to defraud). The plaintiff in Zernik alleged that the defendants violated RICO by enga ging in various acts of mail and wire fraud in connection with the forced sale of the plaintiff’s home at foreclosure. Zernik , 630 F. Supp. 2d at 26. The court dismissed the RICO claim pursu ant to Rule 12(b)(6): Plaintiff alleges seven pr edicate racketeering offens es to support his claim, including collusion in robbery, mail fraud, and wire fraud. Each and every [one] of plaintiff’s alleged predicate racketee ring offenses, however, relates solely to the compelled sale of plaintiff’s house in 2007. As such, pl aintiff fails, at a minimum, to allege a pattern of racketeering activity, as his claims relate to a single alleged scheme, for which he was the sole injured party. Id. at 27 (citing W. Assocs. Ltd. P’ship , 235 F.3d at 634). In this case, the plaintiff ha s provided no factual allegations indicating the ex istence of an ongoing, widespread scheme on the part of the de fendants to unlawfully compel the sale of homeowners in the District of Columbia. See generally Am. Compl. To the contrary, the plaintiff’s RICO claims focus exclusively on th e actions taken by the defendants to foreclose on the plaintiff’s property. See id. ¶¶ 136-210. Although the plaintiff states in a conclusory fashion that other D.C. homeowners have been similarl y victimized by the defendants, the plaintiff has identified no similar actions taken by th e defendants against any other homeowners. See generally id. ; cf. Corley v. Rosewood Care Ctr., Inc. , 142 F.3d 1041, 1051 (7th Cir. 1998) (concluding that the plaintiff ha d adequately pled the existenc e of a pattern of racketeering activity “by referencing his own experiences with Rosewood in c ontracting for the care of his mother and alleging in some detail that other residents and their re latives also were victimized by the identical scheme”). Accordingly, the plaintiff has not alleged the existence of a “pattern of20 racketeering activity” as require d for a viable RICO claim. 8 5. Count VIII: Negligence The plaintiff alleges that th e defendants negligently misrep resented themselves in the Notice and the Deed of Appointment as the lend er and trustee, respectively. Am. Compl. ¶¶ 211-17. The plaintiff states th at she “reasonably and justif iably relied on Defendant[s’] misrepresentations and omissions to [her] de triment and paid [more] that amounts due and owing.” Id. ¶ 218. The plaintiff further alleges that Capital One is liable for negligent supervision because it “failed to train or mon itor its employees properly about the amounts due and owing for escrow payments unde r security instruments, and a bout the requirements that they adhere to the terms of those security instruments, thereby negligently allow[ing] the collection of improper and illegal insurance premiums from Plaintiff.” Id. ¶ 221. Capital One contends 9 that the plaintiff’s negligent misrepresentation and negligent supervision claims both fail because the amende d complaint contains no factual allegations indicating that Capital One proxima tely caused injury to her. See Capital One’s Mot. at 25-26. The plaintiff maintains that she has pled all of th e requisite elements of a negligence claim with the necessary specificity . Pl.’s Opp’n at 43. As a general matter, a claim for negligence in the District of Columbia has four elements:

8 The authorities cited by the plaintiff do not dictate a different result. See, e.g. , Corley v. Rosewood Care Ctr., Inc. , 142 F.3d 1041, 1050 (7th Cir. 1998) (observing that the plaintiff would have a difficult time of establishing a RICO claim “if the predicate acts of racketeering were addressed only to a single victim for a closed-ended period of twelve to fourteen months”); Hargraves v. Capital City Mortg. Corp. , 140 F. Supp. 2d 7, 26 (D.D.C. 2000) (declining to dismiss the plaintiff’s RICO claims in part because the plaintiff had alleged multiple frauds against multiple borrowers clearly related in purpose and method).

9 Prensky does not address the plaintiff’s neg ligence claim in his motion to dismiss, see generally Prensky’s Mot.; Prensky’s Reply, despite the fact that the amended complaint asserts a claim of negligent misrepresentation against him as well, see Am. Compl. ¶¶ 212-17.21 (1) the defendant owed a duty to the plaintiff, (2) the defendant breached its duty, (3) and that breach was the proximate cause of (4) damages sustained by the plaintiff. Powell v. Dist. of Columbia , 634 A.2d 403, 406 (D.C. 1993). The plainti ff’s negligent misrepresentation claim suffers from a similar to defect to th e one that afflicted her fraud claim. See supra Part III.B.1. Namely, the plaintiff has failed to plausibly allege that the defendants’ misrepresentations proximately caused any injury to her. See Am. Compl. ¶¶ 211-18. The plaintiff claims that the defendants negligently misrepresented themselves as the note holder a nd trustee in the Notice and Deed of Appointment, id. ¶ 215, and that as a result, the plaintiff paid amounts in excess of what she owed, id. ¶ 218. Yet, as previously discussed, the amended complaint indicates that the plaintiff made no additional payments to Capital One after the defendants commenced foreclosure proceedings by filing the Notice and Deed of Appointment containing the allegedly fraudulent statements at issue. See id. ¶¶ 32-35. Accordingly, the plaintiff has failed to adequately plead that the defenda nts’ misrepresentations proxim ately resulted in her alleged injury. 10 The plaintiff’s negligent supe rvision claim against Capital One is equally deficient. To establish a claim of negligent supervision, the plaintiff must establish that (1) the employee behaved in a dangerous or otherwise incompeten t manner, (2) the employer knew or should have known its employee’s dangerous or incompetent beha vior and (3) the employe r, “armed with that actual or constructive knowledge, failed to adequately supervised the employee.” Brown v. Argenbright Sec., Inc. , 782 A.2d 752, 760 (D.C. 2001) (citing Giles v. Shell Oil Corp. , 487 A.2d

10 Because this deficiency equally afflicts the pl aintiff’s negligent misrepresentation claim against Prensky, the court dismisses the ne gligence claim against him as well. See Baker v. Director, U.S. Parole Comm’n , 916 F.2d 725, 727 (D.C. Cir. 1990) (observing that sua sponte dismissal pursuant to Rule 12(b)(6) is appropriate when it is patently obvious that the plaintiff cannot prevail based on the facts alleged in the complaint).22 610, 613 (D.C. 1984)). In this case, as previously noted, the plaintiff ha s provided no indication as to how Capital One’s employees improperly assessed escrow char ges or any other fees against the plaintiff. See generally Am. Compl.; see infra Part III.B.1 n.4. In addition, the amended complaint contains only the conclusory allegati on that Capital One knew or should known about its employee’s incompetent conduct. See Am. Compl. ¶ 219; see also Iqbal , 129 S. Ct. at 1949. Thus, the plaintiff’s negligent supervision claim, like its negligent misrepresentation claim, fails to adequately state a claim for which relief can be granted. 6. Count IX: Unconscionability, Bad Faith and Unfair Dealing In Count IX of the amended complaint, which the plaintiff titles “unconscionability, bad faith, [and] unfair dealing,” the plaintiff alleges that the defe ndants “used both their superior positions as a financial institution and foreclosur e attorney, respectively, to take oppressive and unfair advantage of Plaintiff by filing the Forg ed Deed [of Appointment ] and Fraudulent Notice of Sale.” Am. Compl. ¶¶ 226. In so doing, the plai ntiff alleges that the defendants “acted in bad faith.” Id. ¶ 227. The defendants contend that this claim must be dismissed because claims of unconscionability, bad faith and unfair dealing requ ire the existence of a contractual relationship between the plaintiff and the defendant, which is absent here. Capital One’s Mot. at 26-27; Prensky’s Mot. at 9-10. The pl aintiff responds by asserting th at the defendants’ conduct was outrageous and amounts to unconscionable behavior. Pl.’s Opp’n at 43-44. “Liability for common law unconscionability requires two findings: ‘an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party .’” Williams v. First Gov. Mortg.& Investors Corp. 225 F.3d 738, 748 (D.C. Cir. 2000) (quoting Williams v. Walker-Thomas Furniture Co. , 35023 F.2d 445, 449 (D.C. Cir. 1965)) (emphasis added) . Thus, the claim for unconscionability requires the existence of a contract be tween the plaintiff and the defendant. See id. Likewise, a claim for breach of the implied c ovenant of good faith and fair dealing cannot exist in the absence of a contractual relationship. See Kerrigan v. Britches of Georgetowne, Inc. , 705 A.2d 624, 627 (D.C. 1997) (concluding that because the plaintiff, “as an employee at will, not under any contract,” had no basis for claiming that the de fendant breached the implied covenant of good faith and fair dealing); Brown v. Countrywide Home Loans, Inc. , 319 B.R. 278, 290 (D.D.C. 2004) (granting summary judgment to th e defendant on the plaintiff’s claim that the defendant breached the implied covenant of good fa ith and fair dealing because “no reasonable fact-finder could determine that a contract existed between [the parties]”); see also Choharis v. State Farm Fire & Casualty Co. , 961 A.2d 1080, 1089 (D.C. 2008) (c oncluding that D.C. law does not recognize an independent tort of bad faith). The amended complaint is devoid of any al legation indicating a c ontractual relationship between the plaintiff and either defendant. See generally Am. Compl. Indeed, as previously discussed, the plaintiff’s claims are premised on the allegation that Capital One falsely held itself out as the lender in the underlying transaction, when in fact it was serving, at best, as the loan servicer. See generally id. ; see supra Part III.B.1. Accordingly, the court grants the defendants’ motions to dismiss this claim. 7. Count X: “Emotional Distress” The plaintiff has asserted a claim of “emo tional distress,” through which she appears to be asserting a claim of intentional inf liction of emotional distress (“IIED”). See Am. Compl. ¶¶ 229-34. The defendants contend th at this claim should be dismissed because the amended complaint is devoid of any factual allegations suggesting a plausible claim of intentional24 infliction of emotional distress. Capital One’s Mo t. at 27-29; Prensky’s Reply at 12 n.5. Relying on case law preceding the Supreme Court’s decisions in Iqbal and Twombly , the plaintiff maintains that dismissal of this claim is unwarra nted because the defendants have not established that the plaintiff “can prove no set of facts in support of [her] claim which would entitle her to relief.” Pl.’s Opp’n at 43 (quoting Fed. Information Systems, Corp. v. Boyd , 753 F. Supp. 971, 974 (D.D.C. 1990)). As a threshold matter, the court reiterates th at the “no set of facts” standard on which the plaintiff relies has been abrogated by the Supreme Court’s rulings in Twombly and Iqbal

. See

supra Part III.A; Twombly , 550 U.S. at 562 (abrogating Conley , 355 U.S. at 45-46). As previously noted, “[t]o survive a motion to dismi ss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal , 129 S. Ct. at 1949. It is, therefore, not enough for the plaintiff to assert that there could be a set of facts consistent with her pleadings that would entitle her to relief. See Pl.’s Opp’n at 43. Rather, the plaintiff must plead suffic ient factual content to allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal , 129 S. Ct. at 1949. To succeed on her IIED claim, the plainti ff must show “(1) extreme and outrageous conduct on the part of the defendant[s] which (2) intentionally or recklessly (3) cause[d] the plaintiff severe emotional distress.” Khan v. Parsons Global Servs. Ltd. , 521 F.3d 421, 428 (D.C. Cir. 2008) (citing Darrow v. Dillingham & Murphy, LLP , 902 A.2d 135, 139 (D.C. 2006)). Conduct is “extreme and outrageous” when it is “s o outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decen cy, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Homan v. Goyal , 711 A.2d 812, 818 (D.C. 1998) (quoting Drejza v. Vaccaro, 650 A.2d 1308, 1312 n.10 (D.C. 1994)). As a general matter, a case25 of IIED is made out only if “the recitation of th e facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’”
R ESTATEMENT (S ECOND ) OF T ORTS § 46 cmt. d. Although the amended complaint does not specify the precise conduct on which the plaintiff grounds her IIED claim, the court pres umes that she bases the claim on all of the allegations of misconduct set forth in the ame nded complaint: Capital One’s misrepresentation that it was the holder of the note rather than th e loan servicer, Capital One’s improper assessment of escrow charges and other penalties and Pren sky’s holding himself out as the trustee under the Deed of Appointment. See generally Compl. This conduct, stemming from the parties’ disagreements over their rights and obligations in a commercial loan transaction, does not plausibly rises to the level of “atrocious” conduct going “beyond all boun ds of decency” as required to support an IIED claim. 11 See Williams v. Fed. Nat’l Mortg. Ass’n , 2006 WL 1774252, at *10 (D.D.C. June 26, 2006) (concluding that the plaintiff’s allegations of “active, conspiratorial, malicious and secr etive attempts [by the defendants] to curtail or terminate [the plaintiff’s] prospective and ongoing business relationships” and the defendants’ “efforts to damage her personal and business reputation all during a period when they gave false appearances of intending to do busin ess with her” did not, as a matter of law, “rise to the level of extreme and outrageous conduct under District of Columbia law”); see also Lyles v. Micenko , 404 F. Supp. 2d 182, 187 (D.D.C. 2005) (holding that no reasonable fact-fi nder could conclude that the filing of a false police complaint rose to the level of “extreme and outrageous” behavior necessary to give rise to an IIED claim under D.C. law). Accordingly, the plaintiff’s allegations

11 The plaintiff’s reliance on Osbourne v. Capital City Mortg. Co. , 667 A.2d 1321 (D.C. 1995), is misplaced. See Pl.’s Opp’n at 43. Osbourne held merely that damages for emotional distress are recoverable upon a finding of intentional misr epresentation and did not address the pleading standards governing IIED claims. See Osbourne , 667 A.2d at 1328.26 fail to satisfy the first element necessary to state a claim for IIED under D.C. law. Furthermore, the amended complaint contains no factual allegations indicating that the defendants acted “intentionally or recklessly” or that the plai ntiff suffered “severe emotional distress” as a result of the defendants’ behavior. See Khan , 521 F.3d at 428. The plaintiff has alleged no facts suggesting that the defendants inte nded to cause her emotional distress or acted recklessly in initiating foreclosure proceedings against her. See generally Am. Compl. Rather, the plaintiff acknowledges that she had fallen th ree months behind on her mortgage payments at the time the defendants initiated foreclosur e proceedings and the defendants halted the foreclosure proceedings once the pl aintiff commenced this action. Id. ¶¶ 32, 94. Likewise, although the plaintiff alleges that the defendants’ conduct “inflicte d severe mental anguish and emotional distress,” id. ¶ 231, these conclusory allegati ons are unsupported by any factual content established that the plai ntiff suffered “emotional upset ‘of so acute a nature that harmful physical consequences might be not unlikely to result,” Sere v. Grp. Hospitalization, Inc. , 443 A.2d 33, 37 (D.C. 1982) (quoting Clark v. Associated Retail Credit Men of D.C. , 105 F.2d 62, 65 (D.C. Cir. 1939)). For all these reasons, the plaintiff has faile d to state a plausible IIED claim under D.C. law. The court therefore grants the defendants’ motions to dismiss this claim. C. The Court Dismisses the Aforem entioned Claims Without Prejudice As described above, nearly all of the plai ntiff’s claims, as set forth in the amended complaint, are seriously flawed and insufficient to withstand the defendants’ motions to dismiss. See supra Part III.B. As a result, the only claim to survive the defendants’ rulings is the plaintiff’s breach of fiduciary duty claim ag ainst Prensky, which Prensky did not move to dismiss. See id. ; see generally Am. Compl.27 Although the aforementioned clai ms are woefully inadequate and must be dismissed, this Circuit has cautioned that “dismissal with prej udice should be granted only when a trial court determines that ‘the allegation of other facts consistent with the chal lenged pleading could not possibly cure the deficiency.’” Jarrell v. U.S. Postal Serv. , 753 F.2d 1088, 1091 (D.C. Cir. 1985) (quoting Bonanno v. Thomas , 309 F.2d 320, 322 (9th Cir. 1962)). Because it is not entirely clear at this stage of the litigation that the plaintiff cannot remedy th e deficiencies in her pleading with additional factual a llegations consistent with those in her amended complaint, the court dismisses these claims without prejudice. 12

IV. CONCLUSION For the foregoing reasons, the court grants Capital One’s motion to dismiss and Prensky’s motion for partial dismissal. An Order consistent with this Memorandum Opinion is separately and contemporaneously issued this 28th day of March, 2011.

RICARDO M. URBINA United States District Judge

12 As noted in the foregoing analysis, the court h as not addressed every alleged deficiency in the amended complaint raised by the defend ants in their motions to dismiss. See supra Part III.B. The parties should not interpret the court’s d ecision not to address certain arguments as any indication of the court’s view of the merits of those arguments.