UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SEAN DUFFY,

Plaintiff,

v. Civil Action No. 13-696 (GK}

BANK OF AMERICA, N.A., et al.,:

Defendants.

MEMORANDUM OPINION

Plaintiff Sean Duffy ("Plaintiff" or "Duffy") brings this

diversity action against Defendants Bank of America, N. A. ("Bank

of America"), Wells Fargo Bank, N .A. ("Wells Fargo"), Mortgage

Electronic Registration Systems, Inc. ( "MERS") , Deutsche Alt-A

Securities Mortgage Loan Trust, Series 2006-0Al ("Deutsche

Bank") , and HSBC Bank USA, N.A. ( "HSBC") (collectively,

"Defendants")

This matter is presently before the Court on Defendants'

Motion to Dismiss Plaintiff's Complaint [Dkt. No. 3] and

Plaintiff's Motion for Leave to File an Amended Complaint [Dkt.

No. 16]. Upon consideration of the Motions, Oppositions, and

Replies, the entire record herein, and for the reasons stated

below, Defendants' Motion to Dismiss is granted and Plaintiff's

Motion for Leave to File an Amended Complaint is denied. I. BACKGROUND 1

Duffy is the resident and owner in fee simple of real

property located in the District of Columbia. Compl. ~ 1. On

October 31, 2006, Aegis Wholesale Corporation ("Aegis") made a

loan to Duffy. Id. ~ 2. To evidence and secure the loan,

Plaintiff signed an Adjustable Rate Note ("Note") Id. The Note

identified Aegis as the Lender and attached the Deed of Trust

("Deed") to secure Duffy's obligation. Id. The Deed also names

MERS as "the nominee for Lender and Lender's successors and

assigns." Id.; see also Compl. Ex. 1, p. 2.

In 2007, Aegis filed for bankruptcy, and on December 15,

2012, its final liquidation and dissolution was completed.

Compl. ~ 3. It is undisputed that there is an unsatisfied note

and deed of trust encumbering the property.

On September 29, 2011, MERS assigned the Deed to Bank of

America. Id. ~ 16; see also Compl. Ex. 2. This Assignment was

recorded with the Land Records in the District of Columbia. Id.

~ 16.

1 For purposes of ruling on a motion to dismiss, the factual allegations of the complaint must be presumed to be true and liberally construed in. favor of the plaintiff. Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc.,

(D.C. Cir. 2008); Shear v. Nat'l Rifle Ass'n,

(D.C. Cir. 1979). Therefore, the facts set forth herein are taken from the Complaint ( "Compl. ") [Dkt. No. 1-1] .

-2- On January 10, 2013, Bank of America assigned the Deed to

HSBC as Trustee for Holders of the Deutsche Bank Mortgage Pass

Through Certificates.

~ 20; see also Compl. Ex. 3. On

January 11, 2013, this Assignment was recorded with the Recorder

of Deeds for the District of Columbia.

~ 7.

Bank of America now services the Loan.

~ 6. In January

2013, Bank of America informed Duffy that it intended to

foreclose on his home on behalf of HSBC.

~ 23.

On March 26, 2013, Duffy filed a complaint in the Superior

Court for the District of Columbia [Dkt. No. 1-1]. On May 13,

2013, Defendants removed the action to this Court alleging

diversity jurisdiction [Dkt No. 1] .

On May 13, 2013, Defendants filed a Motion to Dismiss

Plaintiff s Complaint 1 [Dkt. No. 3] On May 3 0, 2 013, Plaintiff

filed an Opposition [Dkt. No. 11]. On June 10, 2013, Defendants

filed a Reply [Dkt. No. 13].

II. STANDARD OF REVIEW

To survive a motion to dismiss under Rule 12(b) (6), a

plaintiff need only plead "enough facts to state a claim to

relief that is plausible on its face 11 and to "nudge [ [his or

her] claims across the line from conceivable to plausible. 11 Bell

Atlantic Corp. v. Twombly,

(2007). "[O]nce a

claim has been stated adequately, it may be supported by showing -3- any set of facts consistent with the allegations in the

complaint."

.

Under the Twombly standard, a "court deciding a motion to

dismiss must not make any judgment about the probability of the

plaintiffs' success . [,] must assume all the allegations in

the complaint are true (even if doubtful in fact) [, and]

must give the plaintiff the benefit of all reasonable inferences

derived from the facts alleged." Aktieselskabet AF 21,

(internal quotation marks and citations omitted) . A

complaint will not suffice, however, if it "tenders 'naked

assertion[s]' devoid of 'further factual enhancement.'" Ashcroft

v. Iqbal,

(2009) (quoting Twombly,

) (alteration in Iqbal) .

III. ANALYSIS

Duffy seeks three things. First, he seeks a declaration

that he "owns the Property free and clear of all encumbrances."

Compl. p. 14. Second, he seeks a declaration "that none of the

Defendants has any interest in his property." Opp' n at 1, 8.

Third, he requests that the Court declare the two Assignments of

the Deed void.

Duffy's first request must be denied because the existence

of an encumbrance on his property is undisputed. Compl. ~ 1.

Because Duffy alleges no facts that chal,lenge the existence of -4- the encumbrance, there is no factual support for a declaration

that Plaintiff uowns the Property free and clear of all

encumbrances."

Duffy's second and third requests are based on his

assertion that the original holder of the Deed, MERS, did not

have the authority to transfer the Deed to Bank of America. He

alleges that uMERS is not now nor has it ever been the holder of

the Deed of Trust," and that uthe Deed of Trust does not

authorize MERS to sell or convey it." Compl. ~ 17. In his

Opposition, Duffy insists that uthe Deed of Trust does not

provide to MERS or the beneficiary any rights with respect to

the Deed of Trust." Opp'n at 4. He repeatedly insists that MERS

is only mentioned twice in the Deed, on page one and page two,

and that u [t] here is no other mention of MERS in the document."

Id. at 10-11.

This is incorrect. If Duffy (or, for that matter, any of

the Defendants) had turned to page three of the Deed, he would

have observed that it specifically grants the right to foreclose

on the property to MERS:

Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender's successors and assigns) has the right to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the -5- Property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument.

Compl., Ex. 1, p. 3 (emphasis added) . 2 Thus, contrary to Duffy's

assertions, the Deed explicitly provided MERS with the right to

exercise the Lender's interests, including, but not limited to,

the right to foreclose on his property.

The D.C. Code provides that "[t]ransfer of an instrument

vests in the transferee any right of the transferor to

enforce the instrument." Leake v. Prensky,

(D.D.C. 2011) (quoting

(b)). Thus, the

rights vested in MERS could be and were transferred by valid

assign~ent to Bank of America. Se~ Compl., Ex. 2. Those rights

were then transferred by valid assignment to HSBC as Trustee for

Deutsche Bank. Compl., Ex. 3. Therefore, Duffy is not entitled

to either a declaration that the Assignments of the Deed are

void or a declaration "that none of the Defendants has any

interest in his property." Opp'n at 1, 8.

2 In deciding a motion under Federal Rule of Civil Procedure 12(b) (6), "a court may consider 'the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint,' or 'documents upon which the plaintiff's complaint necessarily relies even if the document is produced not by [the parties] . '" Cannon v. Wells Fargo Bank, N.A., F. Supp. 2d

(D.D.C. July 1, 2013) (citation omitted). Thus, the Court can consider the Deed of Trust, attached to the Complaint as Exhibit 1, and the two Assignments of the Deed, attached as Exhibits 2 and 3. -6- None of Duffy's additional arguments in any way affect the

rights of Bank of America, acting on behalf of HSBC, to exercise

the power-of-sale clause in the Deed.

First, Duffy is incorrect that District of Columbia law

requires a foreclosing institution to be the holder of the

underlying Note. See Diaby v. Bierman,

(D.D.C. 2011) (holding that "whether or not defendants are

holders of the note is not dispositive as to whether they have

standing to foreclose on the property"). The District of

Columbia is a non-judicial foreclosure jurisdiction, which

allows for a power-of-sale to be located in a deed of trust and

then executed by the lender or its representative. See id.; see

also Carter v. Bank of America, N.A.,

(D.D.C. 2012) (noting that District of Columbia is a non-

judicial foreclosure jurisdiction, which "allows foreclosure

pursuant to a 'power of sale provision contained in any deed of

trust"') (quoting Leake,

).

Second, Duffy alleges that there was a violation of

when the Note was sold in September of 2011

without being recorded. Compl. ~~ 13-14. There is no requirement

that an assignment of a note be recorded to be valid. See

Robinson v. Deutsche Bank Nat'l Trust Co., Case No. 12-0732,

(D.D.C. Mar. 25, 2013) (noting that -7- "District of Columbia law does not require an assignment of a

note or deed of trust to be recorded in order for the transfer

to be valid") ; Leake,

(concluding that

bank could enforce note's foreclosure provision under District

of Columbia law, despite its failure to record the assignment of

the note); Diaby,

(holding that "failure

to record an assignment does not give rise to a cause of

action") Thus, Duffy's argument regarding the failure to record

a transfer of the Note is unavailing. 3

In sum, Duffy signed a Deed which granted MERS a power-of-

sale over his property if he failed to make payments in

accordance with the agreement. Duffy has raised no fact or law

which challenges the validity of the power-of-sale clause,

MERS's ability to assign that right to Bank of America, Bank of

America's ability to assign that right to HSBC as Trustee for

3 Moreover,

does not expressly confer a private right of action. The burden is on the plaintiff to show that "the D.C. Council intended to imply a right to sue for damages for violations" of the statute. Koker v. Aurora Loan Servicing, LLC, Case No. 12-1069,

(D.D.C. Jan. 3, 2013) (quoting Coates v. Elzie,

(D.C. 2001)). Duffy has failed to address this issue, much less carry his burden of proof. His failure to respond to the argument is enough to consider the issue conceded. See Koker,

(dismissing claim when plaintiff "provide [d] no analysis on the point and simply assume[d] that she may sue for a violation of the statute"); see also Henok v. Chase Home Fin., LLC, Case No. 12-292,

(D.D.C. Jan. 15, 2 0 13 ) ( sa me) . -8- Deutsche Bank, or Bank of America's ability to enforce that

right on HSBC's behalf. Thus, Duffy has failed to "state a claim

to relief that is plausible on its face, 11 Twombly,

, and Defendants' Motion to Dismiss must be granted.

IV. MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT

Plaintiff filed a Motion for Leave to File Amended

Complaint [Dkt. No. 16] , and that Motion is now ripe. Because

the proposed Amended Complaint is based on the same mistaken

premise as the original Complaint, namely, that there is no

power-of-sale clause in the Deed, the amendment the Plaintiff

seeks is futile. See Hettings v. United States,

(D.C. Cir. 2012) (per curiam) ("A district court may deny a

motion to amend a complaint as futile if the proposed claim 4 would not survive a motion to dismiss. 11 ) • Thus, Plaintiff's

Motion is denied.

V. CONCLUSION

For the foregoing reasons, the Defendants' Motion to

Dismiss is granted, and the Plaintiff's case is dismissed

4 In Plaintiff's Reply in Support of its Motion for Leave to Amend Complaint [Dkt. No. 21], Plaintiff mentions for the first time "the power of sale contained in the Deed of Trust" without citation or explanation. Pl.'s Reply Mem. of Law in Support of His Mot. to Amend the Compl. 4. The rest of Plaintiff's reply suggests that, even if Plaintiff has now recognized that a power-of-sale clause is present in the Deed, he does not understand the legal significance of that fact. -9- without prejudice. " [T] he standard for dismissing a complaint

with prejudice is high: 'dismissal with prejudice is warranted

only when a trial court determines that the allegation of other

facts consistent with the challenged pleading could not possibly

cure the deficiency.'" Belizan v. Herson,

(D.C. Cir. 2006) (quoting Firestone v. Firestone,

(D.C. Cir. 1996)) (emphasis in original). Because neither

the Plaintiff nor the Defendant identified the power-of-sale

clause in the Deed, the possibility that Plaintiff could allege

facts consistent with the presence of a power-of-sale clause

that could justify relief has never been addressed. Thus, in an

abundance of caution, the Court will dismiss the case without

prejudice.

An Order shall accompany this Memorandum Opinion.

January 30, 2014

Copies to: attorneys on record via ECF

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