DIABY v. Bierman
795 F. Supp. 2d 108
D.D.C.2011Background
- Plaintiff Billo Diaby purchased the DC property at 5705 Colorado Ave NW in 1997 and signed a deed of trust with Wells Fargo in 2006.
- A foreclosure sale was scheduled for March 25, 2010, and plaintiff filed four foreclosure-related claims on March 24, 2010 in DC Superior Court.
- Wells Fargo and AHMSI removed the action to federal court and moved to dismiss; Trustees answered denying liability and asserting failure to state a claim.
- Plaintiff sought leave to amend in 2010; the court denied leave to amend for noncompliance with local rules, and the court addressed the original complaint under Rule 12(b)(6).
- The court dismissed Counts I and IV (standing to foreclose and quiet title) without prejudice, dismissed Count III (MHAP) with prejudice, and denied dismissal of Count II (wrongful foreclosure for inaccurate cure amount).
- The court applied Iqbal and Twombly standards, liberally construe the complaint in plaintiff’s favor but rejected unsupported inferences.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to foreclose (Counts I and IV) | Diaby asserts defendants lack recorded assignment and lack standing to foreclose. | Defendants rely on the deed of trust and applicable DC foreclosure statutes; power of sale conferred to trustee regardless of note holder. | Counts I and IV dismissed without prejudice. |
| Wrongful foreclosure for accurate cure amount (Count II) | Cure amount provided in notices was inaccurate, violating DC law. | Plaintiff failed to reference the actual notice and the court should rely on the notice; factual disputes require development. | Count II survives; not dismissed at this stage. |
| MHAP violation (Count III) | MHAP guidelines required foreclosure suspensions during review; plaintiff submitted a package on March 8, 2010. | No private right to MHAP action against private entities; no standing under MHAP. | Count III dismissed with prejudice. |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must state plausible claim; no bare conclusions)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (twombly plausibility standard; not merely possible)
- Kowal v. MCI Commc'ns Corp., 16 F.3d 1271 (D.C. Cir. 1994) (liberal inference standard in Rule 12(b)(6) context)
- Gustave-Schmidt v. Chao, 226 F.Supp.2d 191 (D.D.C. 2002) (documents attached or incorporated by reference may be considered)
- Bank-Fund S.F.E. Credit Union v. Cuellar, 639 A.2d 561 (D.C. 1994) (cure amount must be accurate to fulfill notice requirement)
- Murray v. Wells Fargo Home Mortg., 953 A.2d 308 (D.C. 2008) (trustees' powers tied to instrument and DC foreclosure statutes)
- Bryant v. Jefferson Fed. Sav. & Loan Ass'n, 509 F.2d 511 (D.C. Cir. 1974) (extrajudicial foreclosure requires explicit power of sale in the instrument)
- In re Tyree, 493 A.2d 314 (D.C. 1985) (common law quiet title action defined)
- Sharon v. Tucker, 144 U.S. 533 (1892) (quiet title framework and title protection principles)