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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 24-CV-0778 & 24-CV-0982
LUCY R. EDWARDS & DELPHINE M. JONES, APPELLANTS,
V.
WILMINGTON SAVINGS FUND SOCIETY, FSB, D/B/A CHRISTIANA TRUST,
NOT INDIVIDUALLY BUT AS TRUSTEE FOR PRETIUM MORTGAGE
ACQUISITION TRUST BY RUSHMORE LOAN MANAGEMENT SERVICES LLC
ITS APPOINTED ATTORNEY IN FACT, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(2019-CA-002230-R(RP))
(Maurice A. Ross, Judge)
(Submitted June 4, 2026 Decided August 20, 2026)
Lucy R. Edwards, pro se.
Delphine M. Jones, pro se.
Sara Tussey and Andrew Higgins were on the brief for appellee.
Before BECKWITH, EASTERLY, and SHANKER, Associate Judges.
SHANKER, Associate Judge: Appellants Lucy R. Edwards and Delphine M.
Jones, both proceeding pro se, seek reversal of the trial court’s dismissal of their
counterclaims against appellee Wilmington Savings Fund Society, FSB, and the
2
court’s grant of summary judgment for Wilmington, which resulted in a foreclosure
order for Ms. Edwards’s and Ms. Jones’s property in Northwest Washington, D.C.
We discern no error in the trial court’s orders and affirm.
I. Factual and Procedural Background
In 2007, Ms. Edwards obtained a loan for $430,000 from Lime Financial
Services, LTD, in connection with her property located at 4812 Iowa Avenue, NW,
Washington, D.C. She also executed a promissory note documenting the loan and a
deed of trust securing the note against her property. After Ms. Edwards defaulted on
the promissory note, Wilmington’s predecessor in interest filed a foreclosure action
against her in 2014. Through an assignment, Wilmington assumed all rights and
interests in the loan in 2015. The trial court subsequently dismissed the case against
Ms. Edwards without prejudice after Wilmington moved to dismiss because of a
deficiency in the notice of default that its predecessor in interest had sent to Ms.
Edwards.
Wilmington mailed Ms. Edwards a new notice in 2018 that informed her that
her loan was delinquent due to nonpayment and that she needed to provide the
missing payments within thirty days to cure the default. The letter also notified Ms.
Edwards that failing to pay may result in the acceleration of the loan but that she had
the right to reinstate the loan after acceleration. Ms. Edwards responded with a letter
3
disputing the amount Wilmington claimed she owed, but she did not dispute before
the trial court and does not dispute on appeal that she defaulted on the loan.
Wilmington then filed a judicial foreclosure action pursuant to D.C. Code
§ 42-816 in April 2019. Ms. Edwards filed an answer and two counterclaims
asserting that Wilmington violated D.C.’s Consumer Protection Procedures Act
(CPPA), D.C. Code §§ 28-3901 to -3913, and committed common-law fraud.
Wilmington moved to dismiss Ms. Edwards’s counterclaims in March 2020 under
Superior Court Rule of Civil Procedure 12(b)(6) for failure to state a claim, and, after
a stay caused by the COVID-19 public health emergency, the trial court dismissed
the counterclaims in an oral ruling in March 2023. The following year, the court
granted Wilmington’s motion for summary judgment against Ms. Edwards and
ordered the foreclosure of her property. The court entered judgment against Ms.
Edwards in July 2024, and this appeal followed.
Turning to Ms. Jones, Wilmington amended its complaint in August 2023
after it learned that Ms. Edwards had conveyed a fifteen percent interest in her
property to Ms. Jones in 2022. In November 2023, Ms. Jones filed an answer and a
counterclaim for fraudulent misrepresentation. Wilmington moved to dismiss her
counterclaim in January 2024, also under Rule 12(b)(6), which the trial court granted
three months later. Later that summer, the trial court granted summary judgment in
4
Wilmington’s favor and entered judgment against Ms. Jones the same day it did so
against Ms. Edwards. After the trial court denied her motion to alter, amend, or
vacate the judgment against her, Ms. Jones appealed.
II. Analysis
Ms. Edwards and Ms. Jones both appeal the trial court’s dismissal of their
respective counterclaims and the court’s grant of summary judgment in favor of
Wilmington. Seeing no error in the trial court’s rulings, we affirm.
A. Appellants’ Counterclaims
Appellants argue that the trial court erred when it dismissed their
counterclaims for failure to state a claim. We disagree.
A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of the
complaint,” so we review an order granting a 12(b)(6) motion de novo. Tovar v.
Regan Zambri Long, PLLC, 321 A.3d 600, 609 (D.C. 2024) (citation modified). To
survive a 12(b)(6) motion, “a complaint must set forth sufficient facts to establish
the elements of a legally cognizable claim,” Bell v. First Invs. Servicing Corp., 256
A.3d 246, 251 (D.C. 2021) (citation modified), and those facts, “accepted as true,”
must also “state a claim [for] relief that is plausible on its face[,]” Tovar, 321 A.3d
at 609 (quoting Potomac Dev. Corp. v. District of Columbia, 28 A.3d 531, 544 (D.C.
5
2011)). A claim is plausible on its face “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “Bare allegations of wrongdoing that are no more than
conclusions are not entitled to the assumption of truth, and are insufficient to sustain
a complaint.” Logan v. LaSalle Bank Nat’l Ass’n, 80 A.3d 1014, 1019 (D.C. 2013)
(citation modified). “Any uncertainties or ambiguities in the complaint must be
resolved in favor of the pleader.” Tovar, 321 A.3d at 609 (quoting Hillbroom v.
PricewaterhouseCoopers LLP, 17 A.3d 566, 572 (D.C. 2011)).
We address each of the appellants’ claims seriatim.
1. CPPA Violation
“The CPPA is a comprehensive statute designed to provide procedures and
remedies for a broad range of practices which injure consumers.” Sundberg v. TTR
Realty, LLC, 109 A.3d 1123, 1129 (D.C. 2015) (citation modified). The statute
makes it unlawful for “any person to engage in an unfair or deceptive trade practice.”
D.C. Code § 28-3904; e.g., Animal Legal Def. Fund v. Hormel Food Corps., 258
A.3d 174, 180 (D.C. 2021). The CPPA “establishes a consumer’s ‘right to truthful
information about consumer goods and services’ that are purchased or received in
the District of Columbia,” and we construe and apply it “liberally.” Frankeny v. Dist.
Hosp. Partners, LP, 225 A.3d 999, 1004 (D.C. 2020) (quoting D.C. Code
6
§ 28-3901(c)). Nevertheless, “[t]his court has repeatedly concluded that the CPPA
was designed to police trade practices arising only out of consumer-merchant
relationships.” Archie v. U.S. Bank, N.A., 255 A.3d 1005, 1020 (D.C. 2021) (citation
modified); see also Sundberg, 109 A.3d at 1129 (same); DeBerry v. First Gov’t
Mortg. & Invs. Corp., 743 A.2d 699, 701 (D.C. 1999) (confirming that an unlawful
trade practice must be committed by a “merchant” to fall under the CPPA’s
prohibitions).
A consumer, defined by the statute as “a person who, other than for purposes
of resale, does or would purchase, lease (as lessee), or receive consumer goods or
services,” D.C. Code § 28-3901(a)(2)(A), “may bring an action seeking relief from
the use of a trade practice in violation of a law of the District[,]” id.
§ 28-3905(k)(1)(A). To sufficiently plead a CPPA claim on these grounds, the
consumer-plaintiff generally must establish: (1) the existence of a consumermerchant relationship, Archie, 255 A.3d at 1020; (2) an unfair or deceptive trade
practice as defined by D.C. Code § 28-3904, see Grayson v. AT & T Corp., 15 A.3d
219, 250-52 (D.C. 2011) (en banc); Frankeny, 225 A.3d at 1004; and (3) “a concrete
injury-in-fact,” Stone v. Landis Constr. Co., 120 A.3d 1287, 1289 (D.C. 2015)
(quoting Grayson, 15 A.3d at 244). While the CPPA’s pleading standard is designed
to reduce the burden of particularized pleadings that are required for common-law
fraud claims, see Saucier v. Countrywide Home Loans, 64 A.3d 428, 442 (D.C.
7
2013), including by demanding that only “some cognizable injury be alleged,”
Logan, 80 A.3d at 1026 n.13, “dismissal under Rule 12(b)(6)” remains “appropriate
where the complaint fails to allege the elements of a legally viable [CPPA] claim[,]”
Stone, 120 A.3d at 1289 (citation modified); see Grayson, 15 A.3d at 250.
Even construing Ms. Edwards’s allegations “liberally”—as we “are required”
to do, Black v. D.C. Dep’t of Hum. Servs., 188 A.3d 840, 847 (D.C. 2018) (noting
that we liberally construe a pro se party’s arguments and pleadings)—we are unable
to “draw the reasonable inference that [Wilmington] is liable for” a CPPA violation
based on Ms. Edwards’s counterclaim, see Tovar, 321 A.3d at 609 (citation
modified). Restricting our review to the four corners of her claim, see Rayner v. Yale
Steam Laundry Condo. Ass’n, 289 A.3d 387, 396 (D.C. 2023), the most apparent
shortcoming is Ms. Edwards’s failure to sufficiently allege the existence of a
consumer-merchant relationship between herself and Wilmington, see Archie, 255
A.3d at 1020; Sundberg, 109 A.3d at 1129.
The CPPA defines a “merchant” as “a person . . . who in the ordinary course
of business does or would sell, lease, or transfer, either directly or indirectly,
consumer goods or services . . . which are or would be the subject matter of a trade
practice.” D.C. Code § 28-3901(a)(3)(A); see also Snowder v. District of Columbia,
949 A.2d 590, 599 (D.C. 2008) (reiterating that a “merchant” under the CPPA “must
8
be a ‘person’ connected with the ‘supply’ side of a consumer transaction” (citation
modified)). “We have recognized that” this definition “applies to” merchants that
engage in “real estate mortgage transactions . . . and to mortgage refinancing.”
Logan, 80 A.3d at 1027 (citations omitted).
Ms. Edwards, however, has not alleged that Wilmington provided or would
be providing either of those two consumer services. See D.C. Code
§ 28-3901(a)(3)(A). Indeed, her counterclaim states the opposite. For example, she
claims that Wilmington did not notify her when, through an assignment, it assumed
all rights in interest in the promissory note and deed of trust. She further asserts that
Wilmington never contacted her before sending her the revised notice of default in
2018 or after she sent her letter disputing the amount Wilmington claimed she owed.
Wilmington, according to Ms. Edwards, also made no effort to “reach any agreement
or settlement” before filing its complaint for judicial foreclosure despite the trial
court finding that “negotiation between the parties [was] a viable option.” Moreover,
Ms. Edwards avers that Wilmington “never permitted” her to make partial payments
to “cure the mortgage default” and “never provided any other type of modification.”
An examination of Wilmington’s notice of default, which Ms. Edwards
arguably incorporates into her counterclaim, see Bell, 256 A.3d at 251 (“[T]he court
may consider the complaint itself and any documents it incorporates by reference.”
9
(citation modified)), bolsters the conclusion that she did not sufficiently plead a
consumer-merchant relationship. The notice, which was sent by a law firm, identifies
Wilmington only as the holder of the promissory note. On its face, it offers no
services to Ms. Edwards, focusing instead on Ms. Edwards’s default and the steps
she could take to cure it. The notice also advises Ms. Edwards to contact either the
law firm or the mortgage loan servicer, Rushmore Loan Management Services,
LLC—without mentioning Wilmington—with any inquiries, which, as revealed by
her letter disputing the amount owed (which she attached to her counterclaims), is
exactly what Ms. Edwards did. One potential ambiguity that could further Ms.
Edwards’s cause is the notice’s direction to contact the “Loss Mitigation
Department” if she had questions; however, even when resolving this in her favor to
mean that a consumer service was being or would be offered, see Tovar, 321 A.3d
at 609, the offeror is the law firm that issued the notice, not Wilmington. We need
not wade into whether, in acting to collect the debt on Wilmington’s behalf, the law
firm was a merchant, see Bell v. Weinstock, Friedman & Friedman, P.A., 341 A.3d
1, 12-13 & n.15 (D.C. 2025), nor whether the CPPA applies to Rushmore as a
mortgage loan servicer, see Logan, 80 A.3d at 1027, because neither the law firm
nor Rushmore is a named party in the case. In answering the question at issue—
10
whether Ms. Edwards sufficiently alleged that Wilmington is a merchant under the
CPPA—the notice of default indicates that the answer is no. 1
In short, Ms. Edwards does not allege (and her incorporated documents do not
support) that Wilmington supplied or “would” supply her with a consumer service
of any kind. 2 See D.C. Code § 28-3901(a)(3)(A); Snowder, 949 A.2d at 599. But cf.,
e.g., Archie, 255 A.3d at 1020-21 (holding, at the summary judgment stage, that a
genuine issue of material fact existed as to whether an assignee to a mortgage was a
1
The deed of trust, also arguably incorporated into Ms. Edwards’s
counterclaim, likewise fails to provide support. It states that, if the promissory note on the property is sold, the purchaser of the note does not assume the “mortgage loan servicing obligations,” which will remain with the current loan servicer unless otherwise provided. As Rushmore is the identified loan servicer in the notice of default and Ms. Edwards recognizes that it was the servicer as far back as 2014, the counterclaim at best alleges that Wilmington is the assignee and holder of the promissory note, which is not enough on its own to establish that Wilmington is a merchant under the CPPA. See infra at note 3.
2
To the extent that Ms. Edwards argues in her appellate brief that a consumermerchant relationship existed between herself and Wilmington, we decline to consider her points because “[o]ur review of a Rule 12(b)(6) motion may not rely on any facts that do not appear on the face of the complaint itself.” Rayner, 289 A.3d at 396 (citation modified); see also Martin v. Bicknell, 99 A.3d 705, 712 n.17 (D.C. 2014) (“When considering a Rule 12(b)(6) motion, trial courts are generally limited to the four corners of the complaint and may only consider documents incorporated in the complaint—i.e., either documents attached to the complaint or documents which do not allege facts extrinsic to the pleadings.” (citation modified)). The same reasoning applies to her arguments that Wilmington “participated in a trade practice.” Her counterclaim is devoid of allegations that Wilmington acted to “effectuate, a sale, lease or transfer, of consumer . . . services.” D.C. Code § 28-3901(a)(6).
11
“merchant” under the CPPA where the record showed that the assignee informed the
mortgagor that it “possibly could help arrange a loan modification”); Byrd v.
Jackson, 902 A.2d 778, 781-82 (D.C. 2006) (affirming trial court’s ruling that the
appellant was a merchant under the CPPA because he offered foreclosure avoidance
services to the plaintiff-homeowner). Therefore, because Ms. Edwards has not
alleged that Wilmington “suppl[ied]” her with a consumer good or service, see
Snowder, 949 A.2d at 599 (citation modified), we cannot reasonably infer from the
face of her counterclaim that Wilmington satisfies the definition of “merchant”
under the CPPA, D.C. Code § 28-3901(a)(3)(A); cf. Baylor v. Mitchell Rubenstein
& Associates, P.C., 857 F.3d 939, 948-49 (D.C. Cir. 2017) (concluding that a debt
collector, who is “attempting to recoup funds on behalf of a creditor who did not
itself provide Appellant with any credit,” “does not fall within the bounds” of the
CPPA in part because the collector is providing services to the holder of the debt,
not the borrower). 3 The trial court thus appropriately dismissed Ms. Edwards’s
CPPA cause of action for “failure to state a claim upon which relief can be granted.”
3
On appeal, Ms. Edwards insinuates that assignees who assume the rights and interests in a promissory note and deed of trust automatically qualify as “merchant[s]” under the CPPA. We do not agree because this court has not decided whether the CPPA applies in those circumstances. See Archie, 255 A.3d at 1020-21. While we cannot say that the CPPA would never apply to an assignee of a mortgage—a fact-specific inquiry—we decline to decide the scope of the CPPA in this case because Ms. Edwards failed to allege any conduct that suggests that Wilmington, as an assignee, acted as a merchant as defined by the statute.
12
Super. Ct. Civ. R. 12(b)(6); Tovar, 321 A.3d at 609; see also Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”).
2. Fraud
Ms. Edwards’s fraud claim also falls short. “[C]ommon law fraud is never
presumed”; instead, a plaintiff alleging fraud “must do so with particularity and must
prove it by clear and convincing evidence.” Hercules & Co. v. Shama Rest. Corp.,
613 A.2d 916, 923 (D.C. 1992). “To be entitled to a trial on the merits of a fraud
claim, a plaintiff must allege such facts as will reveal the existence of all the requisite
elements of fraud. Allegations in the form of conclusions on the part of the pleader
as to the existence of fraud are insufficient.” Id. (citation modified). To succeed on
her fraud claim, Ms. Edwards was required to establish that Wilmington made “(1) a
false representation (2) in reference to a material fact, (3) with knowledge of its
falsity and (4) with the intent to deceive, and that (5) an action was taken in reliance
upon the representation.” DCA Capitol Hill LTAC, LLC v. Capitol Hill Grp., 332
A.3d 518, 529 (D.C. 2025).
The crux of Ms. Edwards’s fraud claim is that Wilmington did not enter into
a settlement agreement with her to resolve her outstanding payments despite the
13
defects in the original notice of default and, instead, misrepresented how much she
owed in the revised 2018 notice of default. Wilmington’s “overall actions in this
matter,” according to Ms. Edwards, “are consistent with a fraudulent intent to take
[her] property.” These allegations, without more, fall short of establishing the
requisite elements for a claim of fraud.
Focusing specifically on the fifth element, Ms. Edwards does not allege
anywhere in her counterclaim that she acted “in reliance” on the allegedly inaccurate
amount Wilmington claimed that she owed in the 2018 notice of default. See id. On
the contrary, her counterclaim and the record reveal that she disputed the amount
that Wilmington listed in its notice of default and contended that she was not liable
for the amount Wilmington claimed. She also does not identify any document either
attached to or incorporated by reference into her counterclaim that shows she paid
Wilmington any sum of money either before or after receiving the notice of default.
See Rayner, 289 A.3d at 398 n.24 (“Our review of a 12(b)(6) ruling is limited to
documents incorporated into the complaint such as those that were attached to
appellants’ complaint.” (citation modified)); Bell, 256 A.3d at 251 (“[T]he court may
consider the complaint itself and any documents it incorporates by reference . . . .”
(citation modified)). Thus, Ms. Edwards failed to establish at least one of the
essential elements of a prima facie fraud case. See DCA Capitol Hill LTAC, 332 A.3d
at 529. And in light of this flaw in Ms. Edwards’s counterclaim, “the trial court did
14
not err when it dismissed [her] claim of common law fraud.” Schiff v. Am. Ass’n of
Retired Persons, 697 A.2d 1193, 1198 (D.C. 1997); see Kitt v. Cap. Concerts, Inc.,
742 A.2d 856, 861 (D.C. 1999) (affirming dismissal of a fraud claim when the
appellant did not plead reliance on the appellee’s alleged misrepresentation); see
also Bell, 256 A.3d at 251 (“[A] complaint must set forth sufficient facts to establish
the elements of a legally cognizable claim.” (citation modified)).
3. Fraudulent Misrepresentation
Turning to Ms. Jones’s claim of fraudulent misrepresentation, we similarly
conclude that the trial court did not err. “It is well established that to succeed on a
claim of fraudulent misrepresentation, the claimant must prove six elements.” Sibley
v. St. Albans Sch., 134 A.3d 789, 808 (D.C. 2016). The first five—“(1) that a false
representation was made, (2) in reference to a material fact, (3) with knowledge of
its falsity, (4) with intent to deceive, and (5) action taken in detrimental reliance
upon the representation”—mirror the elements of common-law fraud. Id.; cf. DCA
Capitol Hill LTAC, 332 A.3d at 529. In addition, “to be actionable, reliance on the
misrepresentation must (6) have been justifiable.” Sibley, 134 A.3d at 809. Like
common-law fraud claims, “[s]pecial pleading requirements apply to claims of
fraudulent representation” in that they “must be pled with particularity.” Id. at 809
n.13.
15
In her counterclaim, Ms. Jones alleges that Wilmington fraudulently
represented that it would “work out some type of settlement with [Ms.] Edwards”
but it “never made any efforts to reach any settlement with [Ms.] Edwards.” She
claims that this supposed deception “directly affected [her] interest in the [disputed]
property” because she “relied upon Wilmington Savings’ representations.” These
assertions fail “[t]o comply with the more rigorous” fraud pleading requirements
because the alleged facts do not “reveal the existence of all the requisite elements of
fraud.” See id. (quoting Bennett v. Kiggins, 377 A.2d 57, 59-60 (D.C. 1977)).
Even when granting Ms. Jones every inference to which her allegations are
entitled, we cannot hold that she adequately alleged that she relied on Wilmington’s
supposed misrepresentation or that any claimed reliance was “justifiable.” See id. at
808-09. Starting with reliance, Ms. Jones’s counterclaim simply states that, “like
[Ms.] Edwards, [she] relied upon Wilmington Savings’ representations.” Such
“[b]are allegations . . . that are no more than conclusions . . . are insufficient to
sustain a complaint” under our normal standard of review of a Rule 12(b)(6) motion.
Logan, 80 A.3d at 1019 (citation modified); see also Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (“[F]ormulaic recitation of the elements of a cause of action
will not do.”). Considering “the more rigorous” pleading requirements for a claim
of fraudulent representation, see Sibley, 134 A.3d at 809 n.13, Ms. Jones’s
16
counterclaim falls well short of what is needed to survive Wilmington’s motion to
dismiss. 4
In any event, Ms. Jones’s claim that Wilmington made a false representation
is not “plausible on its face.” Tovar, 321 A.3d at 609 (quoting Potomac Dev. Corp.,
28 A.3d at 544). She asserts that Wilmington “indicated that some form of settlement
could be worked out” and that the trial court “found negotiation between the parties
to be the viable option.” It is true that “we have encouraged parties to settle their
property rights and claims by agreement rather than leave the task to the courts,”
Willcher v. Willcher, 294 A.2d 486, 489 (D.C. 1972), and that “we enforce a valid
and binding settlement agreement just like any other contract[,]” In re Estate of
Drake, 4 A.3d 450, 453 (D.C. 2010) (citation modified). But parties are not obligated
to reach a settlement, and they maintain the right to pursue a judicial remedy. See
4
In her appellate brief, Ms. Jones contends that Wilmington’s purported representation that it would settle with Ms. Edwards “encouraged” her “to exercise her options clause” and purchase a fifteen percent stake in Ms. Edwards’s property. While this provides some additional “particularity” to her claim, our task upon review of a Rule 12(b)(6) motion is to “test[ ] the legal sufficiency of the complaint,” Tovar, 321 A.3d at 609 (citation modified), not the content of the parties’ briefs, see Boyd v. Kilpatrick Townsend & Stockton, 164 A.3d 72, 78 (D.C. 2017) (“We do not consider matters outside the pleadings unless we treat the motion as one for summary judgment.” (citation modified)); Martin, 99 A.3d at 712 n.17 (“When considering a Rule 12(b)(6) motion, trial courts are generally limited to the four corners of the complaint . . . .”); see also Honickman v. BLOM Bank SAL, 6 F.4th 487, 502 n.19 (2d Cir. 2021) (“[A] Rule 12(b)(6) motion tests the adequacy of the complaint not the briefs.” (citation modified)).
17
Convit v. Wilson, 980 A.2d 1104, 1121 (D.C. 2009) (agreeing with the trial court
that the law “promotes and encourages” a party’s “ability to pursue any remedies
[they] may have”); Spencer v. Spencer, 494 A.2d 1279, 1285 (D.C. 1985) (“Parties
are free to choose the method for resolving their dispute . . . .”); see also Perez v.
Maine, 760 F.2d 11, 12 (1st Cir. 1985) (observing that parties have “no duty to settle”
a case “or reduce claims” and that it is ultimately their choice); cf. Makins v. District
of Columbia, 861 A.2d 590, 594-95 (D.C. 2004) (en banc) (holding that an attorney,
even when acting in good faith, does not have the power to accept a settlement
without approval from their client).
Moreover, Ms. Jones does not direct us to any allegation in her counterclaim,
nor a document attached thereto, that suggests that Wilmington entered a binding
agreement or even promised to settle the case with Ms. Edwards. See Rayner, 289
A.3d at 398 n.24; Bell, 256 A.3d at 251. Indeed, Ms. Jones alleges that Wilmington
said an agreement “could be worked out,” not that an agreement definitively would
be reached. Such speculative language might be enough to make Ms. Jones’s claim
possible, see In re K.M., 75 A.3d 224, 234 (D.C. 2013), but it does not allow this
“court to draw the reasonable inference that [Wilmington] is liable for the
misconduct alleged[,]” Tovar, 321 A.3d at 609 (citation modified); see also Iqbal,
556 U.S. at 678. As a result, when we “test[ed] the legal sufficiency” of Ms. Jones’s
counterclaim, it was found wanting. Tovar, 321 A.3d at 609 (citation modified).
18
Consequently, we hold that the trial court did not err in dismissing Ms. Jones’s
counterclaim for fraudulent misrepresentation.
B. Summary Judgment Orders
Ms. Edwards and Ms. Jones also both contest the trial court’s grant of
Wilmington’s motions for summary judgment on its judicial foreclosure claim.
“This court reviews a grant or denial of summary judgment de novo and applies the
same standard as the trial court does in considering the motion for summary
judgment.” Garner v. Univ. of Texas at Austin, 317 A.3d 333, 338 (D.C. 2024)
(quoting Bowyer v. Reinhardt, 277 A.3d 1259, 1265 (D.C. 2022)). “On appeal, this
court is required to conduct an independent review of the record to determine
whether any relevant factual issues exist by examining and taking into account the
pleadings, depositions, and admissions along with any affidavits on file, construing
such material in the light most favorable to the party opposing the motion.” Id.
(quoting Bowyer, 277 A.3d at 1265). “Summary judgment is proper if, when the
facts are viewed in the light most favorable to the non-moving party, there are no
genuine issues of material fact and the moving party is entitled to judgment as a
matter of law.” Id. (quoting Bowyer, 277 A.3d at 1265).
A movant seeking summary judgment on its own claim must first make a
prima facie evidentiary showing as to each of the elements of that claim. See Tolu v.
19
Ayodeji, 945 A.2d 596, 600 (D.C. 2008) (per curiam). “The burden then shifts to the
[nonmovant] to present evidence showing the existence of genuine issues of material
fact,” i.e., unsettled factual questions that (1) could be resolved by a reasonable jury
in the nonmovant’s favor and (2) if so resolved, could lead to the nonmovant’s
successful defeat of the claim. Id. at 600-01. When making this showing, the
nonmovant “may not rest upon conclusory allegations or denials, but must provide
affidavits, depositions, or answers to interrogatories that set forth specific facts
showing that there is a genuine issue for trial.” Id. at 600 (citation modified).
1. Ms. Edwards
Ordinarily, we would begin by determining whether the movant—
Wilmington—made a prima facie showing on the elements of its judicial foreclosure
claim. 5 See id. Ms. Edwards, however, does not contend that Wilmington failed to
meet its initial burden. Instead, she argues that this case is about Wilmington’s 2018
“deficient [d]emand [l]etter,” which “stated the wrong amount owed and therefore
5
To make a “prima facie case for judicial foreclosure,” Wilmington must show (1) that it is the current holder of the promissory note and the beneficiary of the deed of trust, (2) that Ms. Edwards defaulted on the promissory note and failed to cure the default, and (3) that it is “entitled to enforce the [d]eed of [t]rust through a judicial foreclosure sale of the [p]roperty.” Stevenson v. HSBC Bank USA, Nat’l Ass’n, 324 A.3d 295, 307 (D.C. 2024) (citation modified); see also Johnson v. Fairfax Vill. Condo. IV Unit Owners Ass’n, 641 A.2d 495, 506 (D.C. 1994) (“Central among the issues in a judicial foreclosure proceeding is whether the party is in default.”).
20
the incorrect amount necessary to cure [her] mortgage default.” The alleged
deficiency in Wilmington’s letter, according to Ms. Edwards, is “a definite dispute
of material fact” that “preclude[s] a foreclosure.” Addressing the issue as framed,
we see no such material dispute.
First, Ms. Edwards makes multiple arguments that present only legal
conclusions, including that Wilmington “had a duty to start [the loan] over” and
“decelerate the loan and permit [her] to return to monthly payments with the
appropriate amount of interest added to the loan,” and that “[t]he proper remedy in
the instant case was to mediate and or enter into some type of settlement agreement.”
Assertions that “constitute [only] legal conclusion[s] to be made by the court” do not
“raise a disputed issue of material fact.” Williams v. Gerstenfeld, 514 A.2d 1172,
1177 (D.C. 1986); see also 1417 Belmont Cmty. Dev., LLC v. District of Columbia,
302 A.3d 512, 516 (D.C. 2023) (“Conclusory allegations by the nonmoving party
are insufficient to establish a genuine issue of material fact or to defeat the entry of
summary judgment.” (citation modified)).
When liberally construing Ms. Edwards’s argument, see Black, 188 A.3d at
847, it appears that she is gesturing towards a contention that she could defeat
Wilmington’s motion notwithstanding the absence of a genuine issue of material fact
by showing that Wilmington was nevertheless not “entitled to judgment as a matter
21
of law[,]” see Garner, 317 A.3d at 338. Even under this understanding of Ms.
Edwards’s argument, however, we find her position unavailing because she neither
cites nor identifies any legal authority that supports her contentions. See Poola v.
Howard Univ., 147 A.3d 267, 272 n.2 (D.C. 2016) (“We have held repeatedly that
issues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived.” (citation modified)); Smith v. United
States, 837 A.2d 87, 100 n.9 (D.C. 2003) (“Generally, an assertion of an issue
without argument or authority will not be considered on appeal.”); see also Crespo
v. Colvin, 824 F.3d 667, 674 (7th Cir. 2016) (“Moreover, perfunctory and
undeveloped arguments, and arguments that are unsupported by pertinent authority,
are waived . . . .” (citation modified)). We decline to develop Ms. Edwards’s
“skeletal” arguments by putting “flesh on [their] bones” in the form of legal authority
that supports her position. See Gabramadhin v. United States, 137 A.3d 178, 187
(D.C. 2016) (“[I]t is not enough merely to mention a possible argument in the most
skeletal way, leaving the court to do counsel’s work, create the ossature for the
argument, and put flesh on its bones.” (citation modified)).
Second, Ms. Edwards contends that the defect in Wilmington’s notice of
default (listing the incorrect amount to cure her default) is a material error that made
Wilmington’s foreclosure of her property improper and created a genuine dispute of
fact that precludes summary judgment. Ms. Edwards is correct that D.C. Code
22
§ 42-815.02(a)(11) requires a “[n]otice of default [for a] residential mortgage” to
contain “[t]he amount of the principal balance and outstanding interest owed;” “[a]ll
past due payments;” “[p]enalties;” and “[t]he amount required to cure the default
and reinstate the loan, including all past due payments, penalties, and fees.” That
statute, however, is inapplicable in the case before us where Wilmington moved for
judicial foreclosure under D.C. Code § 42-816. Indeed, D.C. Code § 42-815.04
explicitly states that the requirements created by Section 42-815 “shall not apply to
actions for judicial foreclosure under § 42-816, or any other action for judicial
foreclosure permitted under existing laws.” See Rogers v. Advance Bank, 111 A.3d
25, 29 (D.C. 2015) (holding that “§ 42-815 controls when dealing with ‘power of
sale’ foreclosures under an instrument such as a deed of trust and § 42-816 refers to
judicial sales, where the sale is requested by a lender then ordered by the court or an
officer acting under court order”). Moreover, unlike Section 42-815.02(a)(11),
neither Section 42-816 nor the deed of trust securing the promissory note against
Ms. Edwards’s property has an equivalent provision mandating that a breakdown of
the “amount required to cure the default,” “[a]ll past due payments,” and
“[p]enalties” be included in notices of default. See Found. for the Pres. of Historic
Georgetown v. Arnold, 651 A.2d 794, 796 (D.C. 1994) (“Deeds, like contracts, are
construed in accordance with the intention of the parties insofar as it can be discerned
from the text of the instrument.” (citation modified)); Giant Food, Inc. v. Jack I.
23
Bender & Sons, 399 A.2d 1293, 1303 (D.C. 1979) (holding that contractual
provisions govern the parties’ conduct “unless contrary to law or public policy”). 6
Given the above, we are unconvinced by Ms. Edwards’s argument that the absence
of such an itemization in Wilmington’s notice of default created a genuine dispute
of material fact. See Garner, 317 A.3d at 338.
Finally, and most crucially, Ms. Edwards does not bring to our attention any
evidence, such as “affidavits, depositions, or answers to interrogatories,” that “set
forth specific facts showing that there is a genuine” dispute over the amount she was
required to pay to cure her mortgage default. Tolu, 945 A.2d at 600 (citation
modified). Instead, her position rests upon conclusory allegations that Wilmington’s
2018 notice of default “stated the wrong amount owed” because it “allowed interest
to accrue on an improper acceleration of the loan and then continue[d] to charge
interest at the higher acceleration rate.” See id. While this theory offers a possible
reason why Wilmington’s 2018 notice of default could be deficient, Ms. Edwards
“presented no actual evidence that inaccurate [calculation] methods were in fact
6
See also Shea v. Dulin, 3 MacArth. 339, 343 (D.C. 1877) (“Deeds of trust to secure debts are recognized in law as valid, and the authority granted to the trustees and its exercise are matters which rest wholly upon the convention of the parties thereto, and the contract and the rights of the parties thereunder cannot be disturbed by either a court of equity or of law, except upon certain well-known principles which govern all contracts.”).
24
used.” See Kibunja v. Alturas, L.L.C., 856 A.2d 1120, 1128 (D.C. 2004) (emphasis
in original). Accordingly, because Ms. Edwards did not meet her “burden” as the
nonmovant to show “the existence of genuine issues of material fact,” granting
summary judgment in Wilmington’s favor was appropriate. Tolu, 945 A.2d at 600;
see Garner, 317 A.3d at 338.
2. Ms. Jones
Ms. Jones also argues that the trial court erred in granting Wilmington’s
motion for summary judgment against her. In addition to “incorporat[ing]” Ms.
Edwards’s arguments, she contends that we should reverse the trial court for five
reasons: (1) she has a competing interest in the property with Wilmington because
she is not a party to the promissory note or deed of trust that Ms. Edwards executed;
(2) Wilmington does not have a superior interest in the property that permits it to
foreclose on her title based on Ms. Edwards’s default; (3) she alleged fraud in her
counterclaim and courts “rarely” grant summary judgment when “motive or intent
is alleged”; (4) the trial court denied her motion to amend the scheduling order after
Wilmington added her as a party, which prevented her from participating in
discovery; and (5) Wilmington does not have the right to foreclose on her interest
without giving her notice of its intent or affording her the “opportunity to challenge,
25
dispute, settle or cure the amount” allegedly owed. We have considered all five
arguments and find none of them compelling.
Starting with Ms. Jones’s first two assertions, we understand her to be arguing
that she could defeat Wilmington’s summary judgment motion by showing that
Wilmington was not “entitled to judgment as a matter of law.” See Garner, 317 A.3d
at 338; Black, 188 A.3d at 847. From what we can discern, she contends that the law
prevents Wilmington from foreclosing on her property interest. Even when viewed
through this lens, Ms. Jones’s understanding of mortgage law is simply incorrect.
Ms. Jones’s obligations under the deed of trust turn on whether she assumed
Ms. Edwards’s mortgage when she acquired her share of the property. See Yasuna
v. Miller, 399 A.2d 68, 73 (D.C. 1979). As neither Wilmington nor the record
suggests that Ms. Jones agreed to assume any liability for Ms. Edwards’s
mortgage—indeed, the premise of her argument is that she did not—we proceed
under the assumption that she purchased her portion of the property free of any
obligations under the deed of trust.
While her purchase of a stake in the property does not necessarily create a
requirement for her to pay the mortgage, the property “remains ‘subject to’ [Ms.
Edwards’s] mortgage, that is, bears the principal burden of the mortgage.” Id.
Therefore, although Ms. Jones was not a party to the promissory note or deed of trust
26
when she purchased her fifteen percent share, her interest in the property was
“subject to” Wilmington’s prior interest. See id.; OneWest Bank, FSB v. Marshall,
18 A.3d 715, 721 n.3 (D.C. 2011) (“A mortgage is enforceable whether or not any
person is personally liable for that performance.” (citation modified)); see also
Stuart v. Am. Sec. Bank, 494 A.2d 1333, 1338 (D.C. 1985) (“The general rule is that
a foreclosure purchaser takes a property subject to prior liens and interests accruing
prior to consummation of the sale.”). Consequently, Ms. Jones’s partial title to the
property came with the risk that she could lose that title if Ms. Edwards did not
perform her obligations under the deed of trust. See Chase Plaza Condo. Ass’n, v.
JPMorgan Chase Bank, N.A., 98 A.3d 166, 173 (D.C. 2014) (“A valid foreclosure
of a mortgage terminates all interests in the foreclosed real estate that are junior to
the mortgage being foreclosed . . . .” (citation modified)); Restatement (Third) of
Property: Mortgages § 5.2 (2025) (“A non-assuming transferee has the risk of loss
of title to the real estate by foreclosure if the secured obligation is not performed,
but is subject to no further liability.”); see also Esplendido Apartments v. Metro.
Condo. Ass’n of Ariz. II, 778 P.2d 1221, 1224 (Ariz. 1989) (“A purchaser who buys
real property subject to a mortgage . . . takes the land subject to the encumbrances
without a personal obligation to pay the mortgage, but subjects himself to loss of the
property if the mortgage debt is not paid.” (citing Shepherd v. May, 115 U.S. 505,
512 (1885))).
27
Turning to who has the superior interest and its effect on this case, “[i]t is
axiomatic that a prior lien gives a prior legal right (first in time, first in right).”
Fidelity Nat’l Title Ins. Co. of N.Y. v. Tillerson, 2 A.3d 198, 201 (D.C. 2010) (citation
modified); see also Robinson v. Georgetown Ct. Condo., LLC, 39 A.3d 1286, 1291
n.17 (D.C. 2012) (affirming the legal principle that “if the recording of a lien
complied with the recording statute and the recording was first in time, it created an
interest in the property that was superior to later-recorded interests” (citation
modified)); Watergate West, Inc. v. Barclays Banks, S.A., 759 A.2d 169, 180 (D.C.
2000) (“[A] mortgagee’s security interest generally has priority over subsequent
claims or liens attaching to the property.” (quoting Mennonite Bd. of Missions v.
Adams, 462 U.S. 791, 798 (1983))). It is undisputed that the deed of trust executed
between Ms. Edwards and Wilmington’s predecessor in interest was recorded in
2007 and that Wilmington assumed all rights and interests in the deed of trust in
2015. All parties also recognize that Ms. Jones did not record her interest in the
property until 2022. Thus, there is no doubt that Wilmington has the superior
interest. 7 See Tillerson, 2 A.3d at 199. Considering Ms. Edwards’s default and
Wilmington’s superior interest, Ms. Jones’s first two arguments neither establish that
7
Ms. Jones does not contend that Wilmington or its predecessors failed to comply with the recording statute. See Robinson, 39 A.3d at 1291 n.17.
28
Wilmington was not “entitled to judgment as a matter of law,” Garner, 317 A.3d at
338, nor otherwise advance her cause.
Ms. Jones’s third argument is easily disposed of because, although we have
previously said that summary judgment “should be granted sparingly in cases
involving motive or intent,” Spellman v. Am. Sec. Bank, N.A., 504 A.2d 1119, 1122
(D.C. 1986), as we have already concluded, Ms. Jones’s claim for fraudulent
misrepresentation was properly dismissed for failure to state a claim. Moreover, the
legal principle she relies on is relevant at the summary judgment stage where a
party’s state of mind is crucial to the ultimate factual issue, which is not the case
with respect to judicial foreclosure. See, e.g., Leeks v. Leeks, 570 A.2d 271, 274-76
(D.C. 1989). Thus, her dismissed counterclaim had no bearing on Wilmington’s
motion for summary judgment.
Regarding Ms. Jones’s last two contentions, Wilmington argues—and we
agree—that they were not adequately preserved because Ms. Jones did not raise
them in her opposition to its motion for summary judgment. It is well established
that “[p]oints not raised and preserved in the trial court will not be considered on
appeal, except in exceptional circumstances.” Oparaugo v. Watts, 884 A.2d 63, 75
(D.C. 2005). Because we do not discern any exceptional circumstances that would
warrant our consideration of Ms. Jones’s last two arguments, see id., and she failed
29
to raise them prior to the trial court issuing its summary judgment ruling, we hold
that Ms. Jones has forfeited those arguments on appeal. 8 See MP PPH, 339 A.3d at
146.
In sum, we are unpersuaded by Ms. Jones’s arguments and conclude that she
has raised “no genuine issues of material fact.” Garner, 317 A.3d at 338. As we have
already determined that it is uncontested that Wilmington has met its burden as the
moving party regarding its foreclosure claim, see Tolu, 945 A.2d at 600, we hold
that Wilmington “is entitled to judgment as a matter of law[,]” Garner, 317 A.3d at
338.
III. Conclusion
For the foregoing reasons, we affirm the order of the trial court.
So ordered.
8
Ms. Jones did raise her argument related to the court’s denial of her motion to amend the scheduling order in her Rule 59 motion following the trial court’s summary judgment ruling. This, however, does not change our analysis because we generally treat “arguments raised for the first time in a motion for reconsideration as forfeited.” MP PPH, LLC v. District of Columbia, 339 A.3d 132, 146 (D.C. 2025); see id. at 145-46 (“Motions for reconsideration are not designed to enable a party to complete presenting its case after the court has ruled against it . . . .” (citation modified)).