Bihn v. Fifth Third Mortgage Co.Bihn v. Fifth Third Mortgage Co.
ENTRY AND ORDER GRANTING DEFENDANT FIFTH THIRD MORTGAGE COMPANY’S MOTION TO DISMISS (Doc. # 11) AND TERMINATING THIS CASE
This matter is a class action complaint brought by Plaintiff Jacqueline Bihn, on behalf of herself and all others similarly situated, against Defendants Fifth Third Mortgage Company (“FTMC”) and Maguire & Schneider, LLP (“Maguire”). Bihn’s First Claim for Relief is for unfair debt collection practices pursuant to §§ 1692(e) and 1692(f) of the Fair Debt Collection Practices Act (“FDCPA”) against all Defendants. Bihn’s Second Claim for Relief is for deceptive and misleading practices under § 1345.01 of the Ohio Consumer Sales Practices Act against all Defendants. Bihn’s Third Claim for Relief
Pending before the Court is Defendant FTMC’s Motion to Dismiss pursuant to Fed.R.CivJP. 12(b)(6). (Doc #11.) This Motion is now fully briefed and ripe for decision. A relevant factual background will first be set forth, followed by the
FACTUAL BACKGROUND
In the context of a motion to dismiss, the Court must accept as true all of the factual allegations contained in the complaint. Bihn’s Complaint includes the following factual allegations:
In 1983, Bihn entered into a mortgage loan transaction with Citizens Federal Savings & Loan Association of Dayton (“Citizens Federal”) with a $135,000 promissory note. In 1991, Citizens Federal changed its name to Citizens Federal FSB. In 1998, Citizens Federal FSB merged with an entity known as “Fifth Third (Western Ohio).” Bihn made all payments on the loan from April 1983 until December 2009.
On January 20, 2010, Defendant FTMC filed a foreclosure complaint against Bihn, asserting that Bihn had defaulted on the note. Defendant Maguire filed the foreclosure complaint on behalf of FTMC. In the foreclosure complaint, Defendants represented that: Citizens Federal assigned the mortgage to FTMC on November 23, 2009; FTMC was the owner and holder of the mortgage deed; and $33,136.88 was owed to FTMC.
Attached to the foreclosure complaint was a copy of the assignment between Citizens Federal and FTMC. The assignment was signed by Brad Griffith, who was identified as an Assistant Vice President of Citizens Federal on November 23, 2009. At that time, however, Brad Griffith was not an employee of Citizens Federal, but an Assistant Vice President with Fifth Third Bank.
On May 18, 2011, FTMC obtained a foreclosure judgment against Bihn. In the foreclosure judgment, Defendants were awarded certain fees and expenses to which they were entitled under the relevant loan documents in addition to those incurred by pursuing the foreclosure action. Thereafter, Defendants took numerous steps in an attempt to enforce the foreclosure judgment. In May 2011, Defendants filed a Notice of Sheriffs Sale in the state court, but then cancelled the sale after Bihn obtained a stay of execution of the foreclosure judgment pending appeal.
On February 17, 2012, the Court of Appeals for Montgomery County affirmed the trial court’s grant of judgment to FTMC in the foreclosure action. See Fifth Third Mortg. Co. v. Bihn,
On March 8, Defendants filed an opposition to the motion for reconsideration in addition to an opposition to Bihn’s motion to certify a conflict. Defendants argued that even if there was a conflict among the Courts of Appeals, the foreclosure judgment was properly granted because FTMC was the real party in interest at the time the foreclosure action based on the 2009 assignment from Citizens Federal.
On October 31, 2012, the Ohio Supreme Court resolved the split among the appellate courts in Fed. Home Loan Mortg. Corp. v. Schwartzwald by holding that a mortgagee cannot retroactively cure a lack of standing in a foreclosure action by executing an assignment after filing the foreclosure complaint. See Fed. Home Loan Mortg. Corp. v. Schwartzwald,
The Court takes judicial notice that the foreclosure complaint filed in the Court of Common Pleas for Montgomery County, Ohio by FTMC against Thomas J. Bihn (case no. 2010CV00476) has been dismissed by FTMC. Thus, the remanded case (foreclosure complaint) was dismissed at the trial court before any further action was taken by the trial court.
Bihn and other members of the class have been and continue to be threatened with foreclosure. By a Mortgage Loan Payoff Statement dated February 14, 2012, Fifth Third Bank represented that Bihn owed $2,578.90 in “fees currently assessed,” $41,859.39 in “eserow/impound” and $1,199.42 in late charges.
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UNDER FED. R. CIV. P. 12(b)(6)
I. Applicable Legal Standard
The purpose of a Rule 12(b)(6) motion to dismiss is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true. Mayer v. Mylod,
To survive a 12(b)(6) motion to dismiss, a plaintiff must provide more than labels and conclusions, and a formulaic recitation of the elements of a cause of action is not enough. Bell Atlantic Corp. v. Twombly,
However, the Supreme Court has held that:
[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. [Twombly, 550 U.S.] at 555,127 S.Ct. 1955 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we “are not bound to accept as true a legal conclusion couched as a factual allegation”). Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does notunlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556, 127 S.Ct. 1955 . Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. [Iqbal v. Hasty ] 490 F.3d [143] at 157-158 [ (2d Cir.2007) ]. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not “show[n]”—“that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2).
Ashcroft v. Iqbal,
The Sixth Circuit has also noted that to survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), “a ... complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.” Columbia Natural Resources, Inc. v. Tatum,
In evaluating whether the plaintiff has stated a cognizable claim, the court generally may not consider matters outside of the pleadings. See Hammond v. Baldwin,
The Sixth Circuit has clarified the scope of what the court may consider without reaching ‘matters outside of the pleadings.’ Generally speaking, while a plaintiff is not required to attach to the complaint documents upon which his action is based, Fed.R.Civ.P. 10(c) considers “[a] copy of any written instrument which is an exhibit to a pleading ... a part thereof for all purposes.” See Weiner v. Klais & Co.,
Notwithstanding, the ability of a court to consider supplementary documents is not without limitations. The Sixth Circuit has explained that “[w]hile documents integral to the complaint may be relied upon, even if they are not attached or incorporated by reference, it must also be clear that there exist no
II. Analysis
Bihn’s First, Second, Third, and Fourth Claims for Relief are dismissed under Rule 12(b)(6) because she has failed to allege enough well-pleaded facts to support claims upon which relief can be granted.
A. Bihn’s First Claim for Relief Pursuant to §§ 1692(e) and 1692(f) of the FDCPA
Bihn’s FDCPA claim boils down to two central allegations. First, Bihn alleges that the Defendants have, “in representing—and continuing to represent—that Brad Griffith was a Vice-President of Citizens Federal; that Citizens Federal assigned the note and mortgage [FTMC]; that the initial assignment was valid, proper and not deceptive; and that Foreclosure Judgment should be granted and upheldf,] [FTMC] and the Maguire firm made ‘false, deceptive, and misleading representations’ in violation of the first sentence of § 1692e of the FDCPA, and in violation of § 1692e(5).” Compl. ¶ 47. Second, Bihn alleges that “[FTMC] and the Maguire firm have attempted to collect amounts for attorneys’ fees, service of process fees, title fees, preliminary judicial reports, final judicial reports, late fees and other costs and fees from [P]laintiff which they had no right to collect, in violation of § 1692e(2) and § 1692f(l) of the FDCPA. Compl. ¶ 48.
1. The FDCPA
The purpose of the FDCPA is to “eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged and to promote consistent state action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692 (1996). The first sentence of § 1692e of the FDCPA states that “[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e (1996). Section 1692e(5) states that “[t]he threat to take any action that cannot legally be taken or that is not intended to be taken” is conduct in violation of § 1692e. 15 U.S.C. § 1692e(5) (1996). Section 1692e(2) states that “[t]he false representation of the character, amount, or legal status of any debt; or any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt” is conduct in violation of § 1692e. 15 U.S.C. § 1692e(2) (1996). Section 1692f of the FDCPA states that “[a] debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt.” 15 U.S.C. § 1692f (1996).
The FDCPA applies to entities who are considered “debt collectors.” See Montgomery v. Huntington Bank,
The FDCPA also creates eight specific exemptions from the definition of “debt collector,” two of which FTMC bases its argument. Exempted from the definition “debt collector” is “any person while acting as a debt collector for another person, both of whom are related by common ownership or affiliated by corporate control, if the person acting as a debt collector does so only for persons to whom it is so related or affiliated and if the principal business of such person is not the collection of debts.” 15 U.S.C. § 1692a(6)(B) (1996). Also exempted from the definition of “debt collector” is “any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity ... (ii) concerns a debt which was originated by such person ... [or] (in) concerns a debt which was not in default at the time it was obtained by such person.” 15 U.S.C. § 1692a(6)(F) (1996). FTMC argues that it is expressly excluded from the definition of a debt collector under the exemptions in §§ 1692a(6)(B) and 1692a(6)(F), and therefore not subject to liability under the FDCPA.
2. FTMC’s Arguments
First, FTMC alleges it is a wholly-owned subsidiary of Fifth Third Bank, and as a result of this, the FDCPA does not apply because Fifth Third Bank was the corporate successor to the original lender, Citizens Federal. Put another way, FTMC argues that because it was collecting a debt owed to Fifth Third Bank, its parent company, FTMC does not fall within the definition of “debt collector” and is instead exempt from the definition of “debt collector” as prescribed in § 1692a(6)(B). In support of its argument, FTMC contends that the Court may take judicial notice of the 1998 merger between Citizens Federal and Fifth Third Bank. Bihn, however, contends that the documents filed with the Ohio Secretary of State show a merger with an entity known as “Fifth Third (Western Ohio).” Whether this is a matter of semantics or a true illustration of two separate entities is not before this Court to decide in a Rule 12(b)(6) motion to dismiss. Because there is a genuine dispute as to the legal sufficiency of such documents, the Court would instead be required to consider the issue under a motion for summary judgment standard. Mediacom Se. LLC v. Bell-South Telecomms., Inc.,
FTMC’s second argument is that, because FTMC obtained the debt before default, FTMC does not fall within the definition of “debt collector” and is instead exempt from the definition of “debt collector” as prescribed in § 1692a(6)(F). To support its argument, FTMC alleges that, because Citizens Federal and Fifth Third Bank are effectively the same entity, the 2009 assignment between Citizens Federal and FTMC was valid and FTMC therefore obtained the loan while it was still current. Whether FTMC obtained the loan prior to default is not an appropriate decision to be made by the Court on a 12(b)(6) motion. Because this Court must consider matters contained within the Complaint as true, and because this Court may not take judicial notice of Defendant’s proposed facts as indicated above, this Court cannot conclude as a matter of law whether Defen
3. Conclusion On FDCPA Claim
This Court does conclude, however, that Bihn has failed to allege enough facts in the Complaint to show or give rise to the inference that FTMC is a “debt collector” and consequently show or give rise to the inference that the FDCPA is applicable. In support of the FDCPA claim, Bihn has alleged the Defendants to be “debt collectors” by couching legal conclusions as factual allegations. The Court is not bound to accept such conclusory statements as true.
In order to bring the FDCPA cause of action, Bihn attempts to establish the Defendants as debt collectors by its sole allegation that “Fifth Third and the Ma[G]uire firm are debt collectors subject to the FDCPA.” Compl. ¶46. Bihn fails to allege any accompanying facts that suggest the Defendants to be in the business, the “principal purpose of which is the collection of any debts,” or that the Defendants “regularly collect or attempts to collect ... debts owed or due or asserted to be due or due another.” 15 U.S.C. § 1692a(6) (1996). Thus, Bihn’s allegation, which is used to serve as the single illustration that Defendants are “debt collectors,” amounts to a threadbare recital of an element to the FDCPA cause of action.
Bihn also repeatedly asserts that the FTMC obtained an improper foreclosure judgment against Bihn and had no right to commence such an action against Bihn due to a lack of standing. See Compl. at ¶¶ 23, 39, 40, 41, 47 (“As a result of ... deliberate misrepresentations, defendant ... did not own the mortgage as of the commencement of the Foreclosure action ... and had no right to commence the action ...” “... foreclosure by means of a judgment which was improperly obtained ...” “Because the false misrepresentations made by defendants rendered the Foreclosure Judgment invalid ... defendants had no right to demand or attempt to collect ... ’7D “Defendants have demanded ... various fees and expenses in connection with the foreclosure which they have no right to collect ... ”). If the Court could accept these allegations as true, Bihn might be able to meet the appropriate pleading threshold to survive a 12(b)(6) motion. However, this Court will not accept as true Bihn’s legal conclusions that pertain to FTMC’s standing in the foreclosure suit, nor will it entertain Bihn’s legal conclusions concerning the validity of the foreclosure judgment. These legal conclusions are not entitled to be granted truth.
Bihn’s argument essentially can be re-stated as follows:
The 2009 assignment from Citizens Federal to FTMC, which occurred before default, was invalid because it was made by an officer of Fifth Third Bank rather than Citizens Federal, an entity that no longer existed. Because the assignment was invalid, FTMC had not obtained the debt before Bihn defaulted on it just one month later. Because the Defendant did not obtain the debt before default, the Defendant improperly instituted the foreclosure action without standing and thus obtained an improper foreclosure judgment.
Bihn’s argument relies on the Ohio Supreme Court rulings in Federal Home Loan Mortgage Corp. v. Schwartzwald,
In light of these Ohio Supreme Court decisions, Bihn’s allegations of FTMC’s improper foreclosure judgment and standing are legal conclusions—couched as factual allegations—at this point in time. The reason for this is that the appeals court in Bihn I did not expressly rule on the validity of the 2009 assignment between Citizens Federal and FTMC. Instead, the Bihn I court concluded that the second assignment executed between FTMC and Fifth Third Bank—which occurred after the action’s commencement, but before the judgment—sufficed to give the FTMC standing in the foreclosure suit. Bihn I,
Because Bihn has failed to allege facts to show or give rise to the inference that FTMC is a “debt collector” and therefore subject to the FDCPA, Bihn has failed to meet a sufficient standard of pleading to survive a 12(b)(6) motion to dismiss. Bihn’s FDCPA claim against FTMC must therefore be dismissed.
B. Bihn’s Second Claim for Relief Pursuant to the Ohio Consumer Sales Practices Act
The OCSPA provides that “[n]o supplier shall commit an unfair or deceptive act or practice in connection with a consumer transaction.” A “consumer transaction” is defined by the statute as “a sale, lease, assignment, award by chance, or other transfer of an item of goods, a service, a franchise, or an intangible, to an individual.” Ohio Rev.Code Ann. § 1345.01(A) (LexisNexis 2007). The statute also provides that the term “consumer transaction” does not include transactions between persons defined in § 5725.01 of the Revised Code and their customers, which includes “financial institutions,” defined as national bank associations, savings and loan associations, state banks, trust companies, and other banking institutions. Id.; Ohio Rev.Code Ann. § 5725.01 (LexisNexis 2013).
1. Applicability of OCSPA
FTMC argues that Bihn’s OCSPA claim must be dismissed because the OCSPA’s definition of “consumer transaction” contains an express exclusion to FTMC because of FTMC’s status as a subsidiary of
Additionally, FTMC claims that the Ohio Supreme Court’s May 14, 2013 decision precludes Bihn’s OCSPA claim. In Anderson v. Barclay’s Capital Real Estate, Inc., 2013-Ohio1933,
2. Alleged Violation of OCSPA
Even if Bihn met the burden of pleading the applicability of the OCSPA, Bihn has failed to allege enough facts that constitute a violation of the statute. Bihn alleges that FTMC’s actions are “unfair and deceptive practices ... as the acts and practices are materially deceptive and misleading and deceived plaintiffs,” which therefore violates the OCS-PA. Compl. at ¶ 50. Bihn argues that the Defendants’ materially misleading and/or deceptive acts injured the members of the class because, “i) [the class members] were required to defend themselves in a foreclosure action which was improperly instituted and maintained by the [Defendants; [and] ii) [the class members] are being asked to pay fees, charges and/or attorneys’ fees which were not permitted by the underlying loan doc
Bihn does not allege specifically which “materially misleading and/or deceptive” acts by the Defendants constituted unfair and deceptive practices. However, Bihn supplements the allegations in the Complaint with illustration of Ohio case law concerning OCSPA violations due to “fraudulently initiating or procuring a judgment” and “the attempt to recover attorneys fees or other fees prohibited from being passed on.” Compl. at ¶ 53. From this, the Court can infer that the materially misleading and/or deceptive acts to which Bihn refers in the Complaint include the same alleged improper foreclosure upon which Bihn bases the FDCPA claim. As discussed in the previous section of this Order, these allegations are nothing more than legal conclusions. See Compl. at ¶¶ 52-58 (conclusively stating an OCSPA violation without illustrating specific acts which gave rise to the violation). Therefore, because Bihn’s allegations of Defendants’ “misleading and/or deceptive acts” in violation of the OCSPA are illustrated solely by legal conclusions, Bihn has not sufficiently pled enough facts to support an OCSPA claim.
3. Conclusion On OCSPA Claim
Bihn’s OCSPA claim as to FTMC must therefore be dismissed pursuant to Rule 12(b)(6) because Bihn has failed to allege enough facts to show that the OCSPA even applies to FTMC, and further fails to allege enough facts which constitute a violation of the statute.
C. Bihn’s Third Claim for Relief for Unjust Enrichment
1. Relevant Legal Provisions
It is well-settled law in Ohio that, to recover for unjust enrichment, a plaintiff must prove three elements: “(1) a benefit conferred by a plaintiff upon a defendant; (2) knowledge by the defendant of the benefit; and (3) retention of the benefit by the defendant under circumstances where it would be unjust to do so without payment (‘unjust enrichment’).” Hambleton v. R.G. Barry Corp.,
Under Ohio law, a plaintiff may not recover under the theory of unjust enrichment when an express contract covers the same subject. Wuliger v. Mfrs. Life Ins. Co. (USA),
Bihn alleges that the Defendants “charged and received compensation for fees and costs based on a foreclosure which had been improperly instituted,” and that it “would be inequitable for [D]efendants to retain those amounts which the Defendants had no right to charge or collect, and Defendants have been unjustly enriched by doing so.” Compl. at ¶¶ GO-63. It has already been established that Bihn’s assertions regarding the improper foreclosure are legal conclusions which the Court does not accept. Thus, when stripping Bihn’s allegations of this information, the unjust enrichment claim is premised on FTMC receiving “compensation for fees and costs ... [which] ... would be inequitable for [Defendants to retain,” the supporting facts of which, do not constitute an unjust enrichment claim.
The single supporting fact that Bihn uses to illustrate that FTMC was unjustly enriched is that “Defendants charged and received compensation.” See Compl. at ¶ 60 (stating that Defendants were compensated “for fees and costs based on a foreclosure which had been improperly instituted.”); see also Compl. at ¶ 63 (“Upon information and belief, [FTMC] and the Maguire firm were compensated for the services they provided in connection with the purported debts owed by Bihn and other members of the prospective class. Such amounts are properly recoverable as a remedy for an unjust enrichment claim.”). However, in every other allegation pertaining to fees and costs, Bihn omits any allegation that Defendants actually collected, and fails to allege any supporting facts that could lead one to infer that Defendants collected. See Compl. at ¶¶ 40, 41, 42, 47, 51. Even if the Court accepts Bihn’s single, broadly-stated factual allegation as true, however, Bihn’s unjust enrichment must fail.
3. FTMC’s Arguments
FTMC argues that, because Bihn’s mortgage loan is governed by contract, Bihn cannot recover under a claim of unjust enrichment because Ohio law precludes such recovery when there is a written contract concerning the subject matter of this dispute. Bihn responds that she pled unjust enrichment in the alternative, claiming that unjust enrichment may be brought in the event the court finds that there was no valid contract or that the contract did not address the issues in dispute. Bihn is correct in citing Ohio’s rule of law and cases in support thereof. See, e.g., Astar Abatement, Inc. v. Cincinnati City Sch. Dist.,
FTMC’s second argument is that Bihn did not plead all of the elements of an unjust enrichment claim because Bihn failed to plead that she actually conferred a benefit upon FTMC. FTMC specifically points out that Bihn has failed to satisfy
Bihn responds that Ohio courts and Sixth Circuit courts regularly award damages in cases involving similar equitable claims, the measurement of which is defendant’s gain rather than plaintiffs loss. Specifically, Bihn cites to cases in which disgorgement serves as a remedy; however, as FTMC correctly points out, this Court has previously rejected Bihn’s very argument in Kline v. Mortgage Elec. Registration Sys.,
4. Conclusion On Unjust Enrichment Claim
Bihn’s mere allegation that FTMC “was compensated for the services it provided” is insufficient to support an inference that FTMC’s compensation was in any way contingent upon fees collected from Bihn. The Complaint thus leaves open the distinct possibility that the compensation FTMC received was not impacted by allegedly improper fees collected from Bihn. Therefore, Bihn has failed to satisfy the “conferred a benefit” element of a prima facie case of unjust enrichment, and that claim must be dismissed as against FTMC.
D. Bihn’s Fourth Claim for Relief for Breach of Contract
Under Ohio law, the elements for a breach of contract claim are the existence of a valid contract between the parties, performance by the plaintiff, a breach by the defendant, and resulting damages. Pavlovich v. National City Bank,
Bihn alleges that FTMC has charged fees, expenses, and costs of collection which were not permitted under agreements entered into between Bihn and Defendants, and as a result, FTMC has
Even a liberal reading of Bihn’s asserted breach of contract cannot construe her Complaint in such a way as to find the elements sufficiently pled. The Court need not “credit a complaint’s conclusory statements without reference to its factual context” Ashcroft v. Iqbal,
CLAIMS AGAINST DEFENDANT MAGUIRE
This Order dismisses Bihn’s claims solely as against Defendant FTMC and does not consider Bihn’s claims as against Defendant Maguire. Maguire has filed a motion for judgment on the pleadings, and the Court will address the issues therein when the motion is fully briefed and ripe for decision.
CONCLUSION
Bihn’s First, Second, Third, and Fourth Claims for Relief against FTMC are dismissed without prejudice pursuant to Rule 12(b)(6) because Bihn has failed to allege enough facts to support claims for which relief may be granted. Therefore, Fifth Third Mortgage Company’s Motion to Dismiss (Doc. # 11) is GRANTED. All of Bihn’s Claims for Relief as against FTMC are DISMISSED without prejudice.
All of Bihn’s claims against the other Defendant in this matter have been previously dismiss. Therefore, the captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.
DONE and ORDERED in Dayton, Ohio this Thirtieth day of October, 2013.
Notes
. Bihn, in enumerating Claims for Relief, omitted a Third Claim for Relief and instead included (probably mistakenly) only a First, Second, Fourth, and Fifth Claim for Relief. See Compl. ¶ 48-59. For clarity purposes, the “Third Claim for Relief” in this Order refers to the "Fourth Claim for Relief” identified in the Complaint, and the “Fourth Claim for Relief” in this Order refers to the “Fifth Claim for Relief” identified in the Complaint.
. It should once again be noted that Bihn’s improper foreclosure argument is not well-taken by this Court, as it is a mere legal conclusion posited as a factual allegation.
. Bihn cites to this paragraph in support that she directly conferred a benefit on FTMC. See (Doc # 14). Not only does this buttress FTMC's argument that Bihn has not conferred a benefit on FTMC; it also is a legal conclusion which this Court is not bound to accept as factual under Rule 12(b)(6).
. Further, in making the argument that courts award damages in cases involving similar equitable claims, Bihn has not pled facts that show entitlement to this kind of relief. Instead, Bihn solely cites a list of cases, which do not support recovery under unjust enrichment, omitting any factual support.
. The Court acknowledges the valuable contribution and assistance of judicial extern Christina M. Spencer in drafting this opinion.