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UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

)

MICHELE RENEE COLEY, )

)

Plaintiff, )

)

v. ) Civ. Action No. 12-1653 (EGS)

)

BANK OF AMERICA CORP., et al. )

)

Defendants. )

)

MEMORANDUM OPINION

Plaintiff Michele Renee Coley, proceeding pro se, brings 

this action alleging, inter alia, fraud, deceptive practices, 

and unfair business practices against Bank of America Corp., 

successor to Countrywide Financial Corp., Morris Hardwick 

Schneider (hereinafter “MHS”), and Mortgage Electronic 

Registration Systems, Inc. (hereinafter “MERS”). Pending before 

the Court are motions to dismiss filed by Bank of America and 

MHS pursuant to Rule 12(b)(6). Upon consideration of the 

motions, the opposition and replies thereto, the applicable law, 

and the record as a whole, the Court GRANTS Defendants’ motions 

to dismiss. Additionally, Ms. Coley has failed to state a claim 

against MERS. The Court dismisses this action against MERS, sua 

sponte.
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I. BACKGROUND

On April 13, 2007, Plaintiff Michele Renee Coley, a 

Washington D.C. resident, was issued a $247,000 mortgage loan by 

Countrywide Home Loans, Inc., which was later bought by 

Defendant Bank of America. Am. Compl. ¶¶ 7; Bank of America’s 

Mot. to Dismiss (hereinafter “BAC Mot. to Dismiss”) at 3. The 

mortgage loan, a 30-year fixed rate loan secured by real 

property located at 734 Kenyon Street NW, Washington, D.C.

20010, was reduced to a Deed of Trust and Promissory Note. Am. 

Compl. ¶¶ 31-33; BAC Mot. to Dismiss at 3. According to Ms. 

Coley, the payment term ensured that the bulk of her monthly 

payment would be applied to interest and that there would be 

very little principal reduction in the first 15 years. Am. 

Compl. ¶ 41. 

Ms. Coley alleges that the manner in which the loan was 

issued was fraudulent because Defendants failed to determine 

whether she would be able to repay the loan. Id. ¶¶ 42-46. 

Specifically, she alleges that the originator of the loan 

created a fictional income figure to obtain approval for the 

loan. Id. ¶ 38. She also alleges that the loan had a 68.87% 

loan-to-value ratio, which made it “toxic.” Id. Plaintiff 

claims that this type of loan is likely to strain the borrower, 

and notes that Defendant never advised her of the risks 

associated with the loan. Id. ¶¶ 51-53. Finally, she alleges 
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that Defendants “breached their duty to [her] because [they] 

knew, or should have known, that [she] would, or had a strong 

likelihood of defaulting on this loan.” Id. ¶ 56.

At an unspecified time after the loan was issued, Ms. Coley 

applied for a loan modification, which was denied. Am. Compl. ¶ 

36. Plaintiff alleges that there was an offer and acceptance of

the modification, but it did not ultimately take place. Id. 

According to Plaintiff, the reason for the denial was that Bank 

of America either did not have possession of the note or could 

not locate it. Id. ¶ 37. On or about October 12, 2009, 

Plaintiff defaulted on her loan. BAC Mot. to Dismiss at 4. 

Notice of the Foreclosure Sale was recorded among the land 

records in Washington, D.C. on November 4, 2009. However, prior 

to the sale, Bank of America canceled the sale. It has not 

since sought to foreclose on the property. Id. 

Plaintiff filed a lawsuit against Defendant Bank of America 

on October 5, 2012. Bank of America filed a motion to dismiss 

pursuant to Rule 12(b)(6). Plaintiff filed an opposition 

Defendant’s motion to dismiss as well as a motion to strike. In 

those pleadings, Plaintiff raised new claims sounding in fraud 

and pursuant to the Fair Debt Collections Practices Act 

(hereinafter “FDCPA”), 15 U.S.C. § 1692, and the Real Estate 

Settlement Procedures Act (hereinafter “RESPA”), 12 U.S.C. § 

2601 et seq. Given the obligation of the Court to construe pro 
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se filings liberally, the Court ordered Plaintiff to file an 

Amended Complaint stating clearly all of her claims against 

Defendant. See April 12, 2013 Minute Order. Plaintiff filed an 

Amended Complaint on May 13, 2013 and added MHS and MERS as 

Defendants. Both Bank of America and MHS have filed a motion to 

dismiss Plaintiff’s Amended Complaint as well as a motion to 

strike Plaintiff’s Opposition to their motions to dismiss. 

Those motions are now ripe for determination by this Court.

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 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) (internal quotation marks omitted). 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).

However, despite these liberal pleading standards, to 

survive a motion to dismiss, “a complaint must contain 
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sufficient factual matter, accepted as true, to state a claim 

for relief that is plausible on its face.” Ashcroft v. Iqbal, 

129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted); 

Twombly, 550 U.S. at 562. A claim is facially plausible when 

the facts pled in the complaint allow 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). While this standard does not amount to a 

“probability requirement,” it does require more than a “sheer 

possibility that a defendant has acted unlawfully.” Id. (citing 

Twombly, 550 U.S. at 556).

“[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 the Mayor, 567 F.3d 

672, 681 (D.C. Cir. 2009) (quoting Erickson v. Pardus, 551 U.S. 

89, 94 (2007)). The court must also 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) (internal citations omitted). 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 of elements of 

a cause of action, supported by mere conclusory statements” are 

not sufficient to state a claim. Iqbal, 129 S. Ct. at 1949. 
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Although a pro se complaint “must be held to less stringent 

standards than formal pleadings drafted by lawyers,” Erickson, 

551 U.S. at 94 (internal quotation marks and citations 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, 129 S.Ct. at 1950).

III. DISCUSSION

Defendant Bank of America argues that Plaintiff’s Amended 

Complaint should be dismissed on the grounds that she has failed 

to state a claim and because certain of her claims are time 

barred. BAC Mot. to Dismiss at 8. Defendant MHS argues that 

Plaintiff’s Amended Complaint should be dismissed as to it 

because the Amended Complaint fails to even mention it, except 

to name it as a Defendant. MHS Mot. to Dismiss at 5. The Court 

agrees with respect to both motions to dismiss. Even assuming 

the facts alleged in Plaintiff’s Amended Complaint are true, and 

giving Plaintiff the “benefit of all reasonable inferences,”

Aktieselskabet AF 21. November 21 v. Fame Jeans, 525 F.3d 8, 17 

(D.C. Cir. 2008) (internal citations and quotation marks 

omitted), the Court finds that Plaintiff has failed to state a 

claim upon which relief can be granted.

Under the Federal Rules of Civil Procedure, a plaintiff 

must meet “a minimal pleading standard to ensure that the 

adverse party is reasonably informed of the asserted causes of 
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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). Specifically, Fed. R. Civ. P. 

8(a)(2) requires that a complaint contain “a short and plain 

statement of the claim showing that the pleader is entitled to 

relief.” Though this standard is fairly liberal, pleadings 

that: (1) are “confused and rambling narrative[s] of charges and 

conclusions;” (2) are “untidy assortment[s] of claims that are 

neither plainly nor concisely stated;” or (3) fail to allege 

“even with modest particularity the dates and places of alleged 

transactions” must be dismissed. Poblete v. Goldberg, 680 F. 

Supp. 2d 18, 19 (D.D.C. 2009) (quoting Brown v. Califano, 75 

F.R.D. 497, 499 (D.D.C. 1977)).

Plaintiff’s 48-page Amended Complaint is largely devoted to 

broad generalizations about the banking industry as well as a 

lengthy discussion of how MERS operates. See generally Am. 

Compl. Many of the allegations are so overbroad that Defendants 

could not possibly discern the factual basis for those claims or 

properly respond. With respect to Defendant MHS, Plaintiff does 

not even make a single allegation referencing the firm in the 

entire Amended Complaint.

In Count One, Plaintiff seeks declaratory relief, claiming 

that Defendants “did not have the right to initiate foreclosure 

proceedings on the Subject Property” because the loan was a 
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“flip” prohibited by District of Columbia law and because they 

“did not properly comply with applicable statutes regarding 

filing of all transfer documents prior to foreclosure.” Am. 

Compl. ¶¶ 159, 161. Ms. Coley also alleges that Defendants 

illegally foreclosed on her property pursuant to Executive Law § 

63(12), a New York state statute that she claims renders the 

Power of Sale Clause in the Deed of Trust inoperative. Id. ¶¶ 

163-66. She also seeks relief against Bank of America’s 

“foreclosure Attorney.” Id. ¶ 163. Plaintiff does not identify 

the “foreclosure attorney” and it is unclear whether she intends 

this to be a reference to MHS. These allegations seem to be 

based on Ms. Coley’s contention that Bank of America’s cancelled 

foreclosure of her property was pursuant to an assignment of the 

Deed of Trust by MERS. Id. ¶¶ 12-16.

Bank of America argues that it has never claimed standing 

to foreclose on the basis of a purported assignment of rights

facilitated by MERS. BAC Mot. to Dismiss at 5. Instead, Bank 

of America’s right to foreclose arose from its merger with 

Countrywide, pursuant to which it was the successor to any 

interest that Countrywide had in Plaintiff’s loan. Id. 5-6. 

Additionally, Defendant argues that Plaintiff has failed to cite 

to any law, regulation, or legal precedent that would empower a 

Court to strike a Power of Sale clause from a Deed of Trust. 

Id. at 6. 
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The Court agrees and finds that Plaintiff has failed to 

plead any facts that plausibly support a claim for declaratory 

relief. Not only is Plaintiff’s focus on MERS misplaced, but 

she has failed entirely to state any claim regarding the alleged 

foreclosure of her property to justify the Court voiding the 

Power of Sale in the Deed of Trust. Ms. Coley apparently

concedes that Bank of America did not actually foreclose on her 

property, arguing that “courts have recognized a cause of action 

for wrongful attempted foreclosure when foreclosure action was 

commenced, but not completed, where plaintiff[s] have shown that 

a defendant knowingly published an untrue and derogatory 

statement concerning the plaintiffs’ financial conditions and 

that damages were sustained as a direct result.” Am. Compl. ¶ 

14. Even if the Court were to recognize such an action, 

Plaintiff has not stated any facts regarding untrue and 

derogatory statements published by any Defendant. 

In Count II, Plaintiff alleges that Defendants engaged in 

deceptive acts or practices because they attempted to defraud 

her with a “non-judicial foreclosure without proof of the true 

Promissory Note’s existence, or having the Security Deed 

Properly Assigned or retained.” Am. Compl. ¶ 171. Bank of 

America again argues that this claim should be dismissed because 

Plaintiff seems to believe that MERS was somehow involved in the 

attempted foreclosure of her property. BAC Mot. to Dismiss at 
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6. The Court agrees – Bank of America initiated foreclosure 

proceedings on Ms. Coley’s property pursuant to its merger with 

Countrywide, not because of an allegedly faulty assignment 

through MERS. 

Plaintiff purports to plead a claim for unfair and 

deceptive business practices pursuant to “General Business Law § 

349” in Count III. Am. Compl. ¶ 180. As Bank of America points 

out, that is a New York statute which does not apply in this 

jurisdiction. BAC Mot. to Dismiss at 6. Because Ms. Coley 

claims that Defendants failed to properly underwrite her loan 

and failed to follow accepted appraisal guidelines, Am. Compl. 

¶¶ 178-180, the Court will construe Count III as a claim for 

fraud. As such, the claim is subject to the heightened pleading 

requirements of Fed. R. Civ. P. 9(b). However, Plaintiff has 

made no factual allegations against Defendants to raise her 

right to relief above a speculative level, much less with the 

requisite particularity to meet the standards of Rule 9(b). She 

has not provided specific dates when fraudulent statements were 

made to her, nor does she describe the nature of those 

statements. Under such circumstances, the Court “need not 

accept inferences drawn by plaintiff if those inferences are not 

supported by the facts set out in the complaint, nor must the 

court accept legal conclusions cast as factual allegations.” 

Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012)
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(internal citations omitted). See also Carter v. Bank of 

America, 888 F. Supp. 2d 1, 14-15 (D.D.C. 2012) (dismissing 

fraud claims in an almost identical complaint where plaintiff 

failed to plead the elements of common law fraud and instead set 

forth a number of conclusory allegations); McCarter, 873 F. 

Supp. 2d at 250 (same).

In Count IV, Plaintiff seeks to Quiet Title to her property 

and to forever enjoin Bank of America “from asserting any 

estate, right, title, or interest” in the property that is 

adverse to her own. Am. Compl. ¶ 185. Again, Plaintiff has 

stated no basis for such prospective declaratory relief nor has 

she offered any facts to suggest that her quiet enjoyment of the 

property has been disturbed. Thus, this claim is also 

dismissed. See Diably v. Bierman, 795 F. Supp. 2d 108, 111-13

(D.D.C. 2011) (dismissing a quiet title claim under similar 

circumstances).

Plaintiff makes fleeting references to the Truth in Lending 

Act (hereinafter “TILA”), 15 U.S.C. § 1601 et seq., and RESPA 

throughout her Amended Complaint. To the extent that she seeks 

to state a claim pursuant to those statutes, her claims are 

time-barred. Claims brought under TILA must be brought within a 

year of the violation for money damages or within three years of 

the violation for rescission. 15 U.S.C. § 1640(e). For the 

purposes of the statute, a TILA action accrues “no later than 
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the settlement date” of the loan. Lawson v. Nationwide Mortg. 

Corp., 628 F. Supp. 804, 807 (D.D.C. 1986) (internal citations 

omitted). Similarly, RESPA actions must be brought within one 

year of the violation. 21 U.S.C. § 2614. 

Finally, despite a lengthy discussion of how MERS operates, 

Plaintiff has failed to state a claim – either explicitly or 

implicitly – against Defendant MERS anywhere in the Amended 

Complaint. Accordingly, the Court will dismiss the claims 

pending against MERS as well.

IV. CONCLUSION

For the reasons set forth above, the Court GRANTS 

Defendants’ Motions to Dismiss and DENIES Defendant Bank of 

America’s Motion to Strike as moot. An appropriate order 

accompanies this memorandum opinion. 

Signed: Emmet G. Sullivan

United States District Judge

March 31, 2014