MEMORANDUM OPINION
Currently pending before the Court are the Motions to Dismiss Plaintiffs Second Amended Complaint filed by Defendants First Mount Vernon Mortgage, L.L.C. (“FMVLLC”) and Dale Duncan (“Duncan”), as well as two Motions for Partial Summary Judgment filed by Plaintiff, Mary Juergens. Plaintiff brings this thirty-six count action against ten individual and corporate Defendants, asserting claims based on two disparate loans extended to Plaintiff, each of which was secured by a condominium located at 1230 23rd Street, NW, Apartment 505, Washington, D.C. 20037 (the “Condo”). Plaintiff alleges that the first loan was extended by Urban Title Services, Inc. (“UTS”), and that Defendants William Kenney (“Ken-ney”), Robert William Carney (“Carney”), and Paul Erb (“Erb”) (collectively, with UTS, the “UTS Defendants”), each played a role in the extension of the UTS Loan.
On May 25, 2007, the Court issued a Memorandum Opinion and Order regarding Plaintiffs then-operative Amended Complaint.
See Juergens v. Urban Title Seros.,
Plaintiff has now filed her Second Amended Complaint, which Defendants FMVLLC and Duncan have again moved to dismiss for failure to state a claim. In addition, although discovery has yet to be conducted in this case, Plaintiff has filed a new Motion for Partial Summary Judgment on the issue of the whether she transferred legal ownership to the Condo to a limited liability company, and has also filed a second Motion for Partial Summary Judgment on the issue of the alleged lack of consideration for that transfer. Plaintiffs Motions for Partial Summary Judgment are opposed by all of the FMV Defendants, as well as Brickshire. 1
Upon a searching review of the memo-randa filed with respect to the pending motions, the exhibits thereto, the relevant case law and statutes, and the entire record herein, the Court shall grant Defendant FMVLLC’s motion to dismiss Plaintiffs’ Second Amended Complaint, shall deny Defendant Duncan’s motion to dismiss, and shall deny without prejudice Plaintiffs Motions for Partial Summary Judgment. The Court’s conclusions with respect to Plaintiffs Motions for Partial Summary Judgment are based upon the presence of genuine issues of material fact, which must be resolved through discovery. As a result, as set forth in the accompanying Order, the parties shall be precluded from filing any additional dispositive motions prior to the completion of discovery in this matter.
I. BACKGROUND
The Court assumes familiarity with the factual background of this case, which is set forth in detail in its May 25, 2007 Memorandum Opinion,
see generally Juer-gens,
Plaintiff, Mary Juergens, alleges that she resided in and owned a condominium unit located at 1230 23rd Street, N.W., Apartment 505, Washington, D.C. 20037 (the “Condo”), and that, prior to October 2003, she owned the Condo free and clear of any encumbrances or liens, other than a condominium fee assessment of approximately $8000. Second Am. Compl. (“SAC”) ¶¶ 12, 15, 23. However, in October 2003, she required a loan of $60,000 to pay off her condominium fee assessment and to perform renovations on the Condo. Id. ¶ 16. Plaintiff alleges that she spoke with Defendant Kenney, who presented himself as an agent of Defendant UTS, about securing a loan, and Defendants Kenney and UTS agreed to act as lender on a loan to be secured by a deed of trust on the Condo (the “UTS Loan”). Id. ¶¶ 17-18, 22. According to Plaintiff, the proceeds of the UTS Loan were to be used to pay Plaintiffs $8000 condominium fee assessment in full and Plaintiff was to receive approximately $52,000 in cash, less reasonable settlement costs, at closing. Id. ¶ 24. Plaintiff alleges that at the UTS Loan closing, the condo fee assessment was paid off, and Plaintiff received an escrow check in the amount of approximately $24,597.06. Id. ¶ 31. However, according to Plaintiff, she never received an accounting for the other $27,402.84. of the UTS ■Loan. Id. ¶¶ 31, 35.
Plaintiff next alleges that, in August 2005, she went to “the First Mount Vernon Defendants” in order to obtain a loan on the Condo, which would be used to pay off the UTS Loan. Id. ¶¶46, 48. 2 Plaintiff asserts that the loan she sought from the FMV Defendants “was a personal consumer refinance loan as opposed to a commercial loan,” id. ¶ 47, and further asserts that she told Defendants Bennett and Duncan that she planned to live in the Condo after obtaining the loan, id. ¶¶ 54-55, 61. According to Plaintiff, FMVILA and FMVLLC — acting through Defendants Bennett and Duncan — indicated that they would not extend a lqan as small as $60,000, and instead encouraged Plaintiff to take out a loan of $250,000 (hereinafter the “FMV Loan”). Id. ¶49. Plaintiff alleges that under the terms of the FMV Loan, the proceeds would be used to pay off the UTS Loan (plus accrued interest), and Plaintiff would receive approximately $190,000 in cash at closing, less reasonable settlement costs. Id. ¶ 50, 181. However, according to Plaintiff, she received only approximately $95,000 at closing, and has never received either the other $95,000 that she was allegedly due or an accounting as to that $95,000. Id. ¶¶ 100-02.
Plaintiffs Second Amended Complaint includes detailed allegations regarding the steps that allegedly led to the closing of the FMV Loan. First, Plaintiff alleges that on August 16, 2005, Defendant Duncan prepared Articles of Organization for the registration of a limited liability company
Plaintiff continues to allege that on or about August 30, 2005, Defendant Bennett interviewed her for the purpose of completing a “Uniform Residential Loan Application,” attached as Exhibit 1 to Plaintiffs Second Amended Complaint.
Id.
¶¶ 51-60, Ex. 1 (Uniform Resid. Loan Applie.). According to Plaintiff, although she provided Defendant Bennett with truthful answers to the questions on the Application, much of the information Defendant Bennett included in the Application was false.
Id.
¶¶ 52-60. Specifically, Plaintiff alleges that Defendant Bennett: falsely listed Plaintiffs address as one in Virginia although Plaintiff told him that she lived in the Condo; falsely listed various sources of income, including rental income, although Plaintiff informed him that she had no income; and falsely indicated that Plaintiff did not intend to live in the Condo as her primary residence.
Id.
¶¶ 52-55, Ex. 1. Plaintiff admits signing a version of a Uniform Residential Loan Application, but asserts that she “does not believe that the signature on the version ... attached [as Exhibit 1 to her Second Amended Complaint] is her own true genuine signature,” because that version “has ‘filled-in’ data that is false.”
Id.
¶¶ 56-57. Plaintiff alleges that she was never given a copy of the Uniform Residential Loan Application she signed, and did not see the version attached as Exhibit 1 to the Second Amended Complaint until the FMV Defendants filed their motions to dismiss her Amended Complaint.
Id.
¶¶ 58-59.
Plaintiff asserts that the closing of the FMV Loan was scheduled for August 31, 2005 at the offices of the FMV Defendants, and that when she arrived at the closing of the FMV Loan “she believed that the loan would be a personal consumer residential loan.” Id ¶¶ 74-75. Plaintiff alleges that upon arriving at the offices, she was taken to a conference room where Defendant Duncan presented her with a “pile of forms” to sign. Id. ¶¶74, 76. Plaintiff claims that she signed the forms Defendant Duncan presented to her, signing some forms in front of both Defendants Duncan and Bennett, and signing other forms in front of only one of the two. Id. ¶ 77. According to Plaintiff, no one else was physically present when she signed the forms regarding the FMV Loan. Id. ¶ 78. Plaintiff also alleges that several hours after leaving the FMV Defendants’ office on the day of the closing, she “called Defendant Bennett and informed him that she did not want to proceed with this loan, but he refused to stop the loan process.” Id. ¶ 97. Plaintiff does not explain why she wanted to stop the FMV Loan transaction.
According to Plaintiff, she asked for copies of the forms she signed at the FMV Loan closing, but was told by Defendants Duncan and Bennett that they needed to “process” the forms before they could give her copies. Id. ¶ 79. Plaintiff asserts that she only received documents allegedly related to the closing of the FMV Loan “from some of the Defendants” after filing the instant action. Id. ¶ 80. Those documents include: (1) the LLC Articles of Organization, see SAC, Ex. 2; (2) a HUD-1 Settlement Statement that appears to reflect Plaintiffs sale of the Condo to the LLC, see SAC, Ex. 4; (3) a Balloon Deed of Trust Note that appears to reflect a $250,000 loan from FMVTLA to the LLC, see SAC, Ex. 5; (4) a Commercial Loan Balloon Deed of Trust that appears to reflect the LLC’s $250,000 debt to FMVI-LA, see SAC, Ex. 6; (5) a Deed that appears to convey the Condo from Plaintiff to the LLC in exchange for $200,000, see SAC, Ex. 7; (6) a “Notice to Applicant for a Mortgage Loan — Commercial Loan Disclosure,” see SAC, Ex. 8; (7) a Financing Agreement apparently between the LLC and FMVILA, see SAC, Ex. 9; and (8) a Borrower Affidavit that appears to be executed by Plaintiff on behalf of the LLC, see SAC, Ex. 10. SAC ¶ 81. Plaintiff also asserts that she has obtained other documents that appear to be related to the FMV Loan, including a District of Columbia Office of Tax and Revenue Security Affidavit, see SAC, Ex. 11; an Assignment of Contracts, Income, Rents and Profits, see SAC, Ex. 12, and a Deed in Lieu of Foreclosure. Id. ¶ 82.
With the exception of the LLC Articles of Organization, each of these documents is dated August 31, 2005, and each appears to reflect Plaintiffs signature either individually or on behalf of the LLC.
See
SAC, Exs. 2, 4-12. Nevertheless, Plaintiff alleges that she “does not believe that the signatures on the versions of the documents that are attached as exhibits to [the Second Amended Complaint] are her own genuine signatures.”
Id.
¶ 83. Plaintiff further asserts that she “does not recall signing any documents that reference” the LLC because she had no knowledge of the LLC’s existence on August 31, 2005 and “would not have signed such documents on behalf of a business entity about which she had no knowledge.”
Id.
¶ 84. Plaintiff also “contends that she would never have knowingly signed any document that would result in the transfer of legal ownership to
Plaintiff continues to allege, upon information and belief, that Defendants Bennett and Duncan are the agents of Defendant Brickshire “and act as such when signing HUD-1 Settlement Statements and conducting settlements on behalf of Brickshire,” including when they conducted the settlement on the FMV Loan and when they signed the HUD-1 Settlement Statement regarding the FMV Loan. Id. ¶¶ 86-88. Furthermore, in an allegation that is seemingly alternative to her claim that she did not sign the documents described above, Plaintiff alleges that the FMV Defendants and Defendant Brick-shire “prepared and presented documents for [her] signature without explaining the legal effect of such documents to [her] in an effort to charge her a higher rate of interest, and also to circumvent District of Columbia mortgage and fair lending laws.” Id. ¶ 96.
Plaintiff raises a number of other arguments regarding the documents. First, Plaintiff takes issue with what appears to be the notary block on each document, asserting that there is no way to identify the “purported Notary Public” who witnessed the documents, and asserting that the documents do not include a “notarial seal or stamp.” Id. ¶¶ 89-91. According to Plaintiff, Defendants Duncan and Bennett were the only individuals present when she signed documents regarding the FMV Loan, and neither Defendant is a notary in the Commonwealth of Virginia. Id. ¶ 92. 5 Plaintiff thus concludes that the various documents described above “are of no legal effect” because they “require a valid notarization and acknowledgment.” Id. ¶ 95.
Plaintiff also asserts that a “close reading” of the HUD-1 described above “reveals numerous false statements, inconsistencies and ambiguities that, in total lead to the conclusion that the [FMV Loan] was a sham loan designed to circumvent District of Columbia mortgage and fair lending laws.” Id. ¶¶ 98-99. In particular, Plaintiff asserts that the amount listed on the HUD-1 as the pay off figure for the UTS Loan “does not take into consideration amounts that [she] paid ... in order to reduce the amount owed on that loan prior to the closing on the [FMV Loan].” Id. ¶ 103. Plaintiff alleges that, because she never received a pay off statement regarding the UTS Loan, the FMV Defendants and Brickshire owe her “the difference between the amount that was allegedly remitted to pay off the [UTS Loan] and the amount that was actually owed, which is unknown at this time.” Id. ¶¶ 103-04.
Plaintiff next claims that, although the Balloon Deed of Trust Note described above purports to reflect a $250,000 loan from FMVILA to the LLC, because that Note includes an apparent personal guarantee by Plaintiff Juergens, the purported loan to the LLC is in fact a “ ‘residential’ refinance loan, subject to all of the protections found in District of Columbia residential mortgage and fair lending laws.” Id. ¶¶ 105-06. Finally, Plaintiff alleges that she never received a variety of procedural protections required by various District of Columbia statutes in connection with the FMV Loan. Id. ¶¶ 111-14.
Based on these allegations, Plaintiffs Amended Complaint includes thirty-six (36) separate counts — nineteen relating to the UTS Loan and seventeen relating to the FMV Loan — against a combination of the UTS Defendants, the FMV Defen
In Count XXV, Plaintiff alleges Fraud, claiming that the FMV Defendants made numerous false representations to Plaintiff, including that they would extend a residential loan to her, and that she would receive $190,000, less reasonable settlement costs, in cash at the closing of the FMV Loan. Plaintiff further claims that the FMV Defendants knowingly prepared false documents in order to fraudulently disguise the true residential nature of the loan, and that the FMV Defendants presented loan documents to Plaintiff at the closing of the FMV Loan without informing her that the documents would result in the sale of the Condo to the LLC. Id. ¶¶ 295-309. Count XXVI alleges Civil Conspiracy, based on Plaintiffs allegations of Fraud. Id. ¶¶ 310-17. Plaintiff also asserts -a number of statutory claims against the FMV Defendants, including: Violation of the District of Columbia Loan Shark Act, D.C.Code § 26-901, et seq. (Count XXVII, id. ¶¶ 318-28); Violation of the District of Columbia Mortgage Lender and Broker Act, D.C.Code § 26-1101, et seq. (Count XXVIII, id. ¶¶ 329-35); Violation of the District of Columbia Mortgage Loan Protection Act, D.C.Code § 26-1151.01, et seq. (Count XXIX, id. ¶¶ 336-42); Violation of the District of Columbia Unlawful Trade Practice Act, D.C.Code § 28-3904 (Count XXX, id. ¶¶ 343-58); and Violation of the District of Columbia Consumer Credit Service Organization Act, D.C.Code § 28-4601, et seq. (Count XXXI, id. ¶¶ 359-64).
In addition, in Count XXXII, Plaintiff includes a claim for Respondeat Superior, asserting that FMVILA and FMVLLC are responsible for Defendants Duncan’s and Bennett’s allegedly tortious behavior. Id. ¶¶ 365-68. Furthermore, in Count XXXIV, Plaintiff requests that the Court declare the loan documents associated with the FMV Loan void ab initio, declare that the Condo is free and clear of any mortgage or other encumbrance, and quiet title to the Condo in Plaintiffs name. Id. ¶¶ 373-74. In Count XXXV, Plaintiff asks the Court to enter an Order enjoining the FMV Defendants and anyone who received any legal or equitable interest in the Condo from the FMV Defendants from further encumbering the Condo or instituting any foreclosure or eviction proceedings with respect to the Condo. Id. ¶¶ 375-77. Finally, in Count XXXVI, Plaintiff demands an accounting of all funds disbursed or received with regard to the FMV Loan. Id. ¶¶ 378-80.
As noted above, Plaintiff filed her Second Amended Complaint on June 15, 2007,
II. LEGAL STANDARD
A. Rule 12(b)(6)
The Federal Rules of Civil Procedure require that a complaint 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. -,
In evaluating, a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations.
In re United Mine Workers of Am. Employee Benefit Plans Litig.,
B. Summary Judgment
A party is entitled to summary judgment upon a showing that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law.
See
Fed.R.Civ.P. 56(c);
Too v. Freeh,
III. DISCUSSION
A. Defendants FMVLLC and Duncan’s Motions to Dismiss
As noted above, Defendants FMVLLC and Duncan previously moved to dismiss Plaintiffs Amended Complaint; however, because FMVLLC and Duncan supported that motion with a variety of documents that were “neither referenced in or attached to the Amended Complaint,” the Court concluded that their motions to dismiss had been converted to motions for summary judgment pursuant to Federal Rule of Civil Procedure 12(b).
Juergens,
Plaintiff has now amended her complaint, and Defendants FMVLLC and Duncan have moved to dismiss her Second Amended Complaint, asserting that Plain
1. Plaintiff Fails to State a Claim Against Defendant FMVLLC
As FMVLLC correctly notes, Plaintiffs Second Amended Complaint never alleges that FMVLLC was a party to the FMV Loan transaction. Instead, as she did in her Amended Complaint, Plaintiff “generally describes actions taken by Defendants Duncan [and Bennett] on behalf of the FMV Defendants,” a term she uses to collectively describe FMVILA and FMVLLC, “without differentiating between [them].”
Juergens,
Plaintiffs opposition argues that her Second Amended Complaint nevertheless states various claims against FMVLLC because
upon [her] information and belief, [FMVILA] and [FMVLLC] share the same physical place of business and registered agent and [she] was never provided with any documents or information to differentiate the two companies when she went to the offices of “1st Mount Vernon” in August 2005 with the hopes of obtaining a loan to refinance [the UTS Loan],
Pl.’s Resp. to Defs’ FMVLLC and Duncan’s MTD (hereinafter “Pl.’s Opp’n”) at 2-3. This allegation is not included in Plaintiffs Second Amended Complaint. Plaintiffs opposition notes that she raised the same argument in response to FMVLLC’s previous motion to dismiss her Amended Complaint and asserts that she is entitled to discovery “to determine the relationship between [FMVILA] and [FMVLLC].”
Id.
at 3. Plaintiff did, indeed, raise this argument in response to FMVLLC’s previous motion to dismiss and, in that context, it was a winning argument.
See Juergens,
When the Court previously concluded that Plaintiff should be allowed to “conduct discovery as to the relationship between FMVILA and FMVLLC, as well as the role played by FMVLLC in the FMV Loan transaction,” it did so largely because FMVLLC’s motion to dismiss had been converted into a motion for summary judgment and Plaintiff had not been given the opportunity to present all material pertinent to a motion under Rule 56. Id. at 12-13. In contrast, because Plaintiffs Second Amended Complaint incorporates the pertinent documents indicating that FMVLLC was not a party to the FMV Loan transaction, FMVLLC’s current motion to dismiss need not be considered under the rubric of Rule 56. Nor is the Court required to afford Plaintiff the opportunity to present all material pertinent to a motion under that Rule. Instead, the relevant question is whether, on the face of her Second Amended Complaint and the documents attached thereto, Plaintiff states a claim for relief against FMVLLC.
Moreover, in denying FMVLLC’s previous motion to dismiss, the Court specifically granted Plaintiff leave to amend her complaint “in order to specify her allegations with respect to FMVLLC” and, if she so chose, add allegations that FMVLLC and FMVILA failed to differentiate between themselves with respect to the FMV Loan.
Id.
at 13. Plaintiff, however, has
While the Federal Rules of Civil Procedure require only “a short and plain statement of the claim showing that the pleader is entitled to relief,” the purpose of that requirement is to “ ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ”
Bell Atl. Corp.,
550 U.S. -,
2. Plaintiff Sufficiently States Claims Against Defendant Duncan
In contrast, the Court concludes that the allegations included in the Second Amended Complaint are sufficient to state claims for relief against Defendant Duncan. At the outset, the Court notes that, unlike her Amended Complaint, Plaintiffs Second Amended Complaint only alleges breach of contract against FMVILA and FMVLLC. See SAC, Count XX; Pl.’s Opp’n at 3 n. 1. As such, Defendant Duncan’s arguments regarding Plaintiffs breach of contract claim are irrelevant. See FMVLLC/Duncan Mem. at 2-3. As to the remainder of Plaintiffs claims against Defendant Duncan, the Second Amended Complaint is replete with allegations that Defendant Duncan acted as agent on behalf of FMVILA in connection with the FMV Loan transaction. In particular, Plaintiff alleges that Defendant Duncan registered the LLC without Plaintiffs knowledge or consent, as well as by use of false information and a forged signature, “in order to eventually qualify [her] for a loan for which she would not have qualified had truthful information been provided.” SAC ¶¶ 61-73. Plaintiff also alleges that Defendant Duncan “conspired to fraudulently disguise the true nature of the [FMV Loan] from a simple residential refinance loan to a commercial loan.” Id. ¶ 110. Plaintiff further alleges that Defendant Duncan participated in the FMV Loan closing on behalf of both FMVILA and Briekshire, id. ¶¶ 74-88, and that he “prepared and presented documents for Plaintiff’s] signature without explaining the legal effect of such documents to [her] in an effort to charge her a higher rate of interest, and also to circumvent District of Columbia mortgage and fair lending laws,” id. at 96.
With respect to Plaintiffs Fraud claim, Defendant Duncan argues that Plaintiffs allegations are inconsistent, and thus fail to state a claim against him. FMVLLC/Duncan Mem. at 5-7. According to Defendant Duncan, Plaintiff cannot simultaneously allege that the FMV Defendants committed fraud by disguising the nature of the FMV Loan, i.e., by inducing her to sign documents without disclosing their true legal effect, while also alleging that she does not believe she signed the documents attached to the Second Amended Complaint. Id. at 6. However, Rule 8(d)(2) of the Federal Rules of Civil Procedure specifically provides that “[a] party may set out two or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.” Fed.R.Civ.P. 8(d)(2). Plaintiffs allegations are not inherently contradictory; the overall import of the allegations is that Plaintiff does not believe that she knowingly signed the documents attached to the Second Amended Complaint, either because they are not the documents she actually signed, or because the FMV Defendants (including Defendant Duncan) misrepresented the nature of the documents. Even if Plaintiff may ultimately be forced to determine whether she believes she actually signed the documents in question, because the Federal Rules of Civil Procedure permit pleading in the alternative, Plaintiffs allegations are sufficient to survive dismissal.
Defendant Duncan also asserts that “the elements of fraud have not been pled, or [sic] not pled with sufficient particularity in accordance with Federal Rules of Civil Procedure 9(b).” FMVLLC/Duncan Mem. at 5. Under District of Columbia law, the elements of common law fraud are: “(1) a false representation (2) in reference to a material fact, (3) made with knowledge of its falsity, (4) with the intent to deceive, and (5) action is taken in reliance upon the representation.”
Atraqchi v. GUMC Unified Billing Servs.,
Plaintiffs allegations regarding Defendant Duncan, detailed above, meet these requirements. In particular, Plaintiff alleges that in August 2005, at the offices of the FMV Defendants, Defendant Duncan misrepresented to Plaintiff the nature of the FMV Loan and/or the nature of the documents she was signing, created documents designed to disguise the nature of the Loan, and possibly falsified documents regarding the Loan. Plaintiff further alleges that, as a result of Defendant Duncan’s misrepresentations and actions, she agreed to take out a loan of $250,000 and was deprived of loan proceeds to which she was entitled. Such allegations are sufficient to survive a motion to dismiss pursuant to Rule 12(b)(6).
Finally, Defendant Duncan argues that because the FMV Loan was “executed and performed wholly within the Commonwealth of Virginia,” Virginia law applies to the FMV Loan, and Plaintiff cannot state claims against him for various District of Columbia statutory violations. FMVLLC/Duncan Mem. at 8. Defendant Duncan devotes a scant paragraph to this argument, and Plaintiffs response is equally terse. As the parties have not briefed the choice of law issue, the Court draws no conclusions as to which law actually applies to the FMV Loan. The Court notes only that, with respect to at least some of Plaintiffs D.C. statutory claims, the fact that the FMV Loan was executed in Virginia may not preclude application of the D.C. statutes to the Loan.
See
D.C.Code § 26-1151.01(7)(A) (D.C. Home Loan Protection Act applies to “a mortgage loan, secured by property located in the District”);
see also Williams v. First Gov’t Mortgage and Investors Corp.,
Furthermore, although Defendant Duncan asserts that Plaintiff has not alleged that he is a “lender” or “mortgage broker,” as defined in some of the D.C. statutes at issue, the Court notes that those terms are defined quite broadly and that Plaintiff sufficiently alleges that Defendant Duncan “for compensation or gain ... either directly or indirectly, accepted] or offer[ed] to accept an application for a mortgage loan ... or negotiate^] or offer[ed] to negotiate the terms and conditions of a mortgage loan on behalf of a lender.”
See
D.C.Code § 26-1101(10) (defining “mortgage broker”). The parties have given only cursory consideration to the question of whether the various D.C. statutes on which Plaintiff grounds her claims actually apply to the FMV Loan transaction, and the Court declines to develop arguments for Defendant Duncan that he has not
B. Plaintiffs Motions for Partial Summary Judgment
Turning now to Plaintiffs Motions for Partial Summary Judgment, the Court first addresses Plaintiffs argument on the issue a properly executed deed conveying the Condo to the LLC, and then addresses her argument on the alleged lack of consideration for the sale of the Condo to the LLC. As noted above, all of the FMV Defendants, as well as Defendant Brick-shire, oppose each of Plaintiffs Motions for Partial Summary Judgment.
1. Alleged Lack of a Properly Executed Deed
Plaintiff asserts that she is entitled to summary judgment because she did not transfer legal ownership to the Condo via a properly executed and acknowledged deed in accordance with District of Columbia law.
See generally
Pl.’s Deed Mem. Plaintiff raised the same argument in her previous motion for partial summary judgment on this issue, which the Court denied without prejudice based on the clear issues of material fact created by the FMV Defendants’ proffer of a copy of an apparent Deed signed by Plaintiff on August 31, 2005 transferring title in the Condo to the LLC.
See Juergens,
Notwithstanding Plaintiffs argument, a number of issues of fact clearly exist based on the record at this time. Most significantly, although Plaintiffs Second Amended Complaint asserts that she does not believe that she signed the Deed at issue,
see
SAC ¶¶ 83-84, a signature resembling Plaintiffs appears on the face of the Deed.
Compare
PL’s Deed Mem., Ex. B (Juer-gens Aff.)
with
Ex. B(3) (8/31/05 Deed). In addition, as Plaintiff acknowledges, based on the face of the Deed at issue, there is no way to identify the individual who purportedly notarized the document, and thus ascertain whether that individual was a licensed notary. Further, while Plaintiff maintains that Defendants Duncan and Bennett were present when she signed documents regarding the FMV Loan, the Court notes that in his Answer to Plaintiffs Second Amended Complaint, Defendant Bennett denies being present at the closing of the FMV Loan.
See
FMVI-LA/Bennett Ans. ¶ 78. Moreover, although the photocopies of the Deed attached to the parties’ filings do not reveal
These genuine issues of fact become highly material based on the Court’s cursory review of the statutes relevant to Plaintiffs argument that the Deed in question did not validly transfer title to the Condo to the LLC under District of Columbia law because it was not executed, acknowledged, and certified before a notary. See Pl.’s Deed Mem. at 6-8. As an initial matter, in focusing on the lack of a notary seal, Plaintiff cites to the District of Columbia’s requirements for valid nota-rizations. See id. (citing D.C.Code §§ 42-141 and 42-142). The Deed in question, however, was purportedly executed at the FMV Defendants’ offices in Virginia, see PL’s Deed Mem., Ex. B(3); SAC ¶ 74, and District of Columbia law provides reciprocity for notarial acts performed by notaries public of other jurisdictions. See D.C.Code § 42-144. Furthermore, under Virginia law, while a notary is required to “affix a sharp, legible, permanent, and photographically reproducible image of the official seal” near his or her “official signature on the notarial certificate of a paper document,” “failure to affix an official seal shall not in any way impact the legality or efficacy of the paper document.” Va.Code Ann. § 47.1-16.
In addition, even if the Deed in question was not “acknowledged and certified,” as required by D.C.Code § 42-401, because that section “deals with acknowledgment, certification,
and recordation
as protections for ‘creditors and subsequent bona fide purchasers,’ ... [tjhose requirements do not bar the operation of a signed, sealed, and delivered deed against parties and their assignees.”
Lumpkins v. CSL Locksmith, LLC,
2. Alleged Lack of Consideration
Plaintiff argues that she is likewise entitled to summary judgment because the alleged sale of the Condo from Plaintiff to the LLC is void for lack of consideration. In support of her Motion, Plaintiff asserts that, although the Deed attached to her Second Amended Complaint recites that she was paid $200,000 by the LLC as consideration for the sale, the HUD-1 that purports to reflect the alleged sale does not account for any payment of $200,000 from the LLC to Plaintiff, and she was never paid $200,000 by the LLC for an alleged sale. See generally PL’s Consid. Mem. Again, however, summary judgment is precluded by the existence of genuine questions of material fact.
Specifically, Plaintiffs assertion that she did not receive $200,000 from the LLC for an alleged sale, see id., Ex. B (6/20/07 Juergens Aff. ¶ 7), is clearly contradicted by the recitation in the Deed at issue. Further; because Plaintiff does not believe she signed that Deed, see SAC ¶ 85, another question exists as to the validity of that signature. Next, Plaintiffs argument that she did not receive consideration for the alleged sale is based largely on the HUD-1 that purports to memorialize the sale of the Condo to the LLC. See PL’s Consid. Mem., Ex. B(2) (8/31/05 HUD-1). That HUD-1, however, is also contradicted by the Deed at issue, and Plaintiff offers no legal or factual grounds for crediting either the alleged Deed or the alleged HUD-1 over the other. Furthermore, even if the Court were to credit the HUD-1 (which Plaintiff asserts she does not believe she signed, see SAC ¶¶ 83-84) over the Deed, the HUD-1 reflects a number of payments on Plaintiffs behalf which, in combination, total over $200,000. Specifically, the HUD-1 states that $61,195.11 of the FMV Loan proceeds were used to pay off the UTS Loan, $95,000 was advanced to FMVILA, and $67,526.31 was escrowed for “interest Reserve.” See PL’s Consid. Mem., Ex. B(2) (8/31/05 HUD-1). Plaintiff admits to receiving $95,000 in cash at the closing of the FMV Loan, see SAC ¶ 101, and in his Affidavit filed in support of his Opposition, Defendant Bennett asserts that “funds escrowed from the [FMV Loan] transaction were paid out to meet the monthly payment obligations set forth in the Balloon Deed of Trust Note dated August 31, 2005 which [Plaintiff] had personally guaranteed. Those payments totaled approximately $78,750.00,” see 7/11/07 Bennett Aff.
Based on the foregoing, it is clear that genuine questions exist as to disposition of the FMV Loan proceeds and whether Plaintiff, in fact, received $200,000 from those proceeds that might constitute consideration for the alleged sale of the Condo to the LLC. These questions are highly material, and while they may ultimately be resolved through discovery, they preclude summary judgment in favor of Plaintiff at this time. The Court shall therefore deny without prejudice Plaintiffs Motion for Partial Summary Judgment on the alleged lack of consideration. Plaintiff may raise the alleged lack of consideration again, if
IV. CONCLUSION
For the foregoing reasons, the Court shall (1) grant Defendant FMVLLC’s Motion to Dismiss Plaintiffs Second Amended Complaint; (2) deny Defendant Duncan’s Motion to Dismiss Plaintiffs Second Amended Complaint; (3) deny without prejudice Plaintiffs Motion for Partial Summary Judgment as to the alleged lack of a properly executed deed; and (4) deny without prejudice Plaintiffs Motion for Partial Summary Judgment as to the alleged lack of consideration for the sale of the Condo to the LLC. In addition, as set forth in the accompanying Order, the parties shall be precluded from filing any further dispositive motions before discovery is complete in this matter.
Notes
. Defendants UTS, Carney, Erb, Kenney, FMVILA, and Bennett have all filed answers to Plaintiff’s Second Amended Complaint.
. Plaintiff uses the term “First Mount Vernon Defendants” to collectively describe FMVILA and FMVLLC, without distinguishing between the entities. See Am. Compl. ¶ 8. As noted above, the Court will refer to FMVILA, FMVLLC, Bennett, and Duncan collectively as the "FMV Defendants.” Although the Court shall refer to "FMVILA and FMVLLC" where Plaintiff uses the term "First Mount Vernon Defendants,” the Court notes that Plaintiff’s Second Amended Complaint does not distinguish in any way between actions allegedly undertaken by FMVILA and actions allegedly undertaken by FMVLLC.
. Plaintiff's Second Amended Complaint incorporates by reference, and attaches as exhibits, a number of documents that were proffered by the FMV Defendants in support of their motions to dismiss Plaintiff's previous Amended Complaint. See SAC, Exs. 1-12. Plaintiff's Second Amended Complaint adds allegations regarding these documents, and the role that they allegedly played in the FMV Defendants’ actions with respect to the FMV Loan.
. Elsewhere in her Second Amended Complaint, Plaintiff states that she first learned of the LLC's existence during preparations for this litigation. SAC ¶ 73.
. Plaintiff supports her assertion that neither Defendant Duncan nor Defendant Bennett is a notary in Virginia with a December 1, 2006 letter to that effect from a Notary Specialist in the Office of the Secretary of the Commonwealth of Virginia. SAC, Ex. 13.
. Defendants FMVILA and Bennett devote much of their Opposition to Plaintiff's Motion for Summary Judgment to arguing that Plaintiff’s challenge to the efficacy of the Deed in question is barred by D.C.Code § 42-403, which provides that "[a]ny instrument recorded in the Office of the Recorder of Deeds ... shall be effective notwithstanding the existence of [a failure in the formal requisites of a deed] ... unless the failure is challenged in a judicial proceeding commenced within 6 months after the instrument is recorded.”
See
FMVILA/Bennett Opp’n at 5-7 (citing D.C.Code § 42-403). The Deed in question was recorded on September 21, 2006.
See
Pl.’s Deed Mem., Ex. B(3) (8/31/05 Deed).' According to FMVILA and Bennett, Plaintiff did not challenge the validity of the Deed “in a judicial proceeding” until her June 15, 2007