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Jones v. Nationwide Advantage Mortgage Co.

United States District Court, M.D. North Carolina

March 27, 2018

DEVON V. JONES, Plaintiff,


          Loretta C. Biggs, United States District Judge

         Plaintiff, Devon V. Jones, appearing pro se, initiated this action against Defendant, Nationwide Advantage Mortgage Company (“NAMC”), in Guilford County Superior Court alleging, what appears to be, a breach of contract claim, and seeking damages among other relief. (See ECF No. 3.) Defendant subsequently removed the action to this Court on the basis of diversity jurisdiction. (ECF No. 1.) Following removal, Plaintiff filed a First Amended Complaint (“Complaint”). (ECF No. 9.) Before the Court is Defendant's Motion to Dismiss Amended Complaint. (ECF No. 10.) For the reasons stated below, the Court grants Defendant's motion.

         I. BACKGROUND

         On July 20, 2007, Plaintiff executed a Note for a mortgage loan of $78, 000 from NAMC. (ECF No. 10-1 at 1, 3.) The terms of the Note provided that the loan would be repaid at a fixed interest rate of 7.750% over thirty years. (Id. at 1.) The Note was secured by a recorded Deed of Trust in favor of NAMC claiming an interest in a parcel of real property located at 1728 Rockford Street in Winston-Salem, North Carolina. (ECF No. 10-2.)

         According to the Complaint, Plaintiff contacted NAMC via telephone, on August 11, 2016, to discuss his loan account. (ECF No. 9 ¶ 11.) During the call, Plaintiff “requested a full balance.” (Id.) Plaintiff disputed the loan balance amount provided by NAMC and requested that “the payoff amount and payoff address be mailed to [Plaintiff].” (Id.) Plaintiff alleges that he received the requested information from NAMC on or around August 15, 2016. (Id. ¶ 12.) The Payoff Statement provided by NAMC, which was accompanied by a letter and payoff instructions, reflected a payoff total of $70, 444.61 that expired on September 1, 2016. (ECF No. 9-3 at 1-3.)

         Plaintiff alleges that he mailed two money orders to NAMC-one on August 19, 2016, and another on September 19, 2016-each as a settlement offer, and each in the amount of $835.00. (ECF No. 9 ¶¶ 13, 14; ECF No. 9-2 ¶¶ 7, 9; ECF No. 9-4; ECF No. 9-5.) Each money order was sent to NAMC at the payoff address listed in the payoff instructions provided to Plaintiff by NAMC. (See ECF No. 9-3; ECF No. 9-4; ECF No. 9-5.) The following handwritten statement was included on the face of the August 19, 2016 money order: “Tendered as full satisfaction of claim, ” (ECF No. 9 ¶ 13; ECF No. 9-4 at 1); and, the September 19, 2016 money order likewise included the following handwritten statement: “Tendered as full satisfaction of claim under duress, ” (ECF No. 9 ¶ 14; ECF No. 9-5.) Plaintiff alleges that both money order payments were “accepted and credited to [his] account.” (ECF No. 9 ¶¶ 13-14.)

         Plaintiff subsequently sent letters to NAMC, dated October 12, 2016, November 8, 2016, and November 28, 2016, regarding a payment dispute on his account. (Id. ¶¶ 15-17; ECF No. 9-6; ECF No. 9-7; ECF No. 9-8.) Among other things, in each letter, Plaintiff cited language from N.C. Gen. Stat. § 25-3-311, titled “Accord and satisfaction by use of instrument, ” and stated that NAMC's “acceptance and depositing of [Plaintiff's money orders dated August 19 and September 19, 2016] means [NAMC] must credit [Plaintiff's account] to show[ ] the loan was fully satisfied.” (ECF No. 9-6 at 1-2; ECF No. 9-7 at 1-2; ECF No. 9-8 at 1-2.) Plaintiff also demanded: (i) that NAMC credit his account “immediately to reflect that the loan was fully satisfied”; (ii) that NAMC release the lien and title to the secured real property; and (iii) “that all collections and credit reporting cease until this dispute is settled.” (ECF No. 9-6 at 2; ECF No. 9-7 at 2; ECF No. 9-8 at 2.) Plaintiff alleges that he received no response from NAMC to each letter. (ECF No. 9 ¶¶ 15-17.)

         On December 15, 2016, Plaintiff sent a letter to NAMC, captioned “Notice of Pending Lawsuit, ” which stated that the letter was “being sent prior to filing suit [as] an opportunity to amicably cure [NAMC's] violations of the terms of the contract according to UCC § 3-311 and [ N.C. Gen. Stat.] § 25-3-311.” (ECF No. 9 ¶ 18; ECF No. 9-9 at 1.) Plaintiff's letter indicated that NAMC had “five days from receipt” to settle the matter. (ECF No. 9-9 at 1.)

         Plaintiff alleges that he brings this action “for the willful or knowing violation of accord and satisfaction, ” (ECF No. 9 ¶ 22), and he also appears to allege a breach of contract claim in his response to NAMC's motion to dismiss, (ECF No. 13 ¶¶ 2, 6, 7).[1]

         NAMC moves to dismiss this action with prejudice for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.


         A Rule 12(b)(6) motion to dismiss “challenges the legal sufficiency of a complaint, ” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009); “it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint may fail to state a claim upon which relief can be granted in two ways: first, by failing to state a valid legal cause of action, i.e., a cognizable claim, see Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th Cir. 2012); or second, by failing to allege sufficient facts to support a legal cause of action, see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). In evaluating whether a claim is stated, “a court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff, ” but does not consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of further factual enhancement[, ] . . . unwarranted inferences, unreasonable conclusions, or arguments.” Nemet Chevrolet, Ltd. v., Inc., 591 F.3d 250, 255 (4th Cir. 2009).

         While a court's evaluation of a Rule 12(b)(6) motion to dismiss is “generally limited to a review of the allegations of the complaint itself, ” a court can properly consider documents “attached to the complaint as exhibits.” Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016). A court may also consider “document[s] submitted by the movant that [were] not attached to or expressly incorporated in a complaint, so long as the document[s] [were] integral to the complaint and there is no dispute about the document[s'] authenticity.” Id. at 166. Here, no party has challenged the authenticity of the documents attached to ...

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