Palmer v. Gmac Commercial Mortgage ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SHAUNA PALMER,
Plaintiff,
Civil Action No. 08-1853 (CKK)
v.
HOMECOMINGS FINANCIAL, LLC,
Defendant.
MEMORANDUM OPINION
(January 6, 2010)
This lawsuit arises out of a home mortgage loan transaction between Plaintiff Shauna
Palmer and Defendant Homecomings Financial LLC (“Homecomings”). Palmer refinanced her
existing home mortgage loan in April 2007, and she claims that Homecomings violated various
statutes and regulations by, among other things, charging her fees that were unrelated to the work
performed in connection with her loan. This Court granted-in-part and denied-in-part
Homecomings’ motion to dismiss Palmer’s Amended Complaint, dismissing three of Palmer’s
four claims but holding that Palmer stated a claim under the Real Estate Settlement Procedures
Act (“RESPA”), 12 U.S.C. § 2601, et seq. See [31] Order (June 25, 2009); [32] Memo. Op.
(June 25, 2009). Palmer filed a Third Amended Complaint restating her RESPA claim and
asserting a claim under the Equal Credit Opportunity Act (“ECOA”), 15 U.S.C. §§ 1691 et seq.
Currently pending before the Court is Homecomings’ motion to dismiss the Third Amended
Complaint. Homecomings has asserted statute of limitations defenses with respect to both
claims and further contends that Palmer has failed to state a claim for relief under the ECOA.
For the reasons explained below, the Court shall GRANT Homecomings’ Motion to Dismiss
Palmer’s RESPA claim on statute of limitations grounds and HOLD IN ABEYANCE
Homecomings’ Motion to Dismiss Palmer’s ECOA claim for failure to state a claim upon which
relief can be granted.
I. BACKGROUND
On April 26, 2007, Palmer refinanced her existing first mortgage loan on her home in
Washington, D.C., with a loan from Homecomings. See Third Am. Compl. ¶ 23. Although her
credit score exceeded 700, Palmer was given a loan with an adjustable rate of nearly nine
percent, although she believes she qualified for a fixed rate of around six percent. Id. ¶ 24.
Palmer paid $19,000 in points and fees in connection with the loan. Id. ¶ 25. Palmer claims that
she was not given an opportunity to read the loan documents at closing and was not informed
what her broker’s total compensation would be prior to the closing. Id. ¶¶ 27-28. Palmer alleges
generally that the terms of the loan were unlawful, predatory, and discriminatory. Id. ¶ 29.
Palmer initiated this action on March 13, 2008 when she filed a complaint in the Superior
Court for the District of Columbia. After Palmer filed an amended complaint on October 9,
2008, Homecomings removed the case to federal court on October 27, 2008.
II. LEGAL STANDARD
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. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957));
accord Erickson v. Pardus, 551 U.S. 89, 93 (per curiam). Although “detailed factual allegations”
are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the “grounds” of
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“entitle[ment] to relief,” a plaintiff must furnish “more than labels and conclusions” or “a
formulaic recitation of the elements of a cause of action.” Id. at 1964-65; see also Papasan v.
Allain, 478 U.S. 265, 286 (1986). Instead, a complaint must contain sufficient factual matter,
accepted as true, to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at
570. “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.”
Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).
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., 854 F. Supp. 914, 915 (D.D.C. 1994); see also
Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (“The complaint must be ‘liberally
construed in favor of the plaintiff,’ who must be granted the benefit of all inferences that can be
derived from the facts alleged.”). However, as the Supreme Court recently made clear, a plaintiff
must provide more than just “a sheer possibility that a defendant has acted unlawfully.” Iqbal,
129 S. Ct. at 1950. Where the well-pleaded facts set forth in the complaint do not permit a court,
drawing on its judicial experience and common sense, to infer more than the “mere possibility of
misconduct,” the complaint has not shown that the pleader is entitled to relief. Id. at 1950.
III. DISCUSSION
Palmer’s Third Amended Complaint asserts two claims: (1) that Homecomings violated
provisions of the Real Estate Settlement Procedures Act by giving kickbacks to Palmer’s
mortgage broker for the referral of business to Homecomings and giving the broker a split of the
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settlement charges other than for services actually performed; and (2) that Homecomings violated
the Equal Credit Opportunity Act by discriminating against Palmer on the basis of her race
and/or sex. Homecomings has moved to dismiss on the ground that each of these claims is
barred by the statute of limitations in their respective statutes. Palmer contends that her RESPA
and ECOA claims are timely because they relate back to earlier pleadings that were timely filed.
Homecomings has also moved to dismiss the ECOA claim on the ground that Palmer has failed
to state a claim for relief. The Court shall address each argument in turn.
A. RESPA Statute of Limitations
Palmer’s Third Amended Complaint alleges violations of RESPA Section 8, 12 U.S.C.
§ 2607. Palmer actually alleges two separate violations of the statute: (i) giving kickbacks to
mortgage brokers for the referral of business in violation of § 2607(a) and (ii) splitting settlement
charges with brokers for services not actually performed in violation of § 2607(b). See Third
Am. Compl. ¶¶ 31-32. The statute of limitations for claims under § 2607 is one year. 12 U.S.C.
§ 2614; Winstead v. EMC Mortgage Corp., 621 F. Supp. 2d 1, 4 (D.D.C. 2009). A cause of
action under § 2607 accrues on the date of the closing. See Snow v. First Am. Title Ins. Co., 332
F.3d 356, 359 (5th Cir. 2003) (holding that the “date of the occurrence of the violation” language
in § 2614 refers to the closing); Winstead, 621 F. Supp. 2d at 4. Therefore, Palmer’s claim
accrued in April 2007, the closing date for her refinancing. See Third Am. Compl. ¶ 23. Palmer
first stated her RESPA claim in the Amended Complaint filed on October 9, 2008. See [22] Am.
Compl. ¶¶ 33-36. Palmer does not dispute that this was more than one year after her claim
accrued. Rather, she argues that the RESPA claim in her Amended Complaint relates back to the
filing of her original Complaint, which was filed within a year of the closing. See Pls.’ Mem.
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Opp’n to Def.’s Mot. to Dismiss (“Opp’n”) at 7.
Palmer’s original Complaint, filed pro se, is not a model of clarity. Among the numerous
claims it asserts are breach of contract, transacting business without a certificate of authority,
misrepresentation, constructive fraud, quasi-contract and unjust enrichment, conversion, gross
negligence, and unlawful entry and detainer. See Opp’n, Ex. 1 (Complaint) at 7-10. The crux of
its allegations, however, is that the Defendant1 “is not the actual and/or legal holder of the debt
[Palmer] owe[s]” and therefore cannot foreclose on the property. See id. at 1, 6; see also id. at 4(“From the Defendants’ own records they have shown that it is impossible for them to currently
be the holder of this note.”). The Complaint alleges that Defendant sold the mortgage and
promissory note to a government sponsored enterprise several months after the closing and
therefore no longer owns the debt. Id. at 1-2. It then goes on to state that
Pursuant to the Defendant’s Liability for Failure to Comply with any provision of
Section 6 RESPA (24 CFR 3500.21) and the terms of the note involving mortgage
servicing transfers:
During Discovery, the Plaintiff will request the information including, but not limited
to these items below, which will prove that the facts are clear and undisputable in
favor of the Plaintiff. . . .
Compl. at 2 (emphasis original). What follows is a list of the information that would be sought
during discovery, which includes certified copies of the mortgage and promissory note, the name
of the government sponsored enterprise with whom the servicer was contracting, and various
public filings. Id. at 2-3. The language quoted above is the only mention of RESPA in the entire
1
Palmer initially named GMAC Commercial Mortgage as a defendant, but the parties
agree that the proper defendant is Homecomings Financial, LLC, who is properly named as such
in the Third Amended Complaint. The Court shall therefore refer to the Defendant at all times as
“Homecomings.”
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Complaint.
Relation back is governed by Federal Rule of Civil Procedure 15(c), which states in
pertinent part that “[a]n amendment to a pleading relates back to the date of the original pleading
when . . . the amendment asserts a claim or defense that arose out of the conduct, transaction, or
occurrence set out—or attempted to be set out—in the original pleading.” Fed. R. Civ. Proc.
15(c)(1). “[A]n amendment that ‘attempts to introduce a new legal theory based on facts
different from those underlying the timely claims’ does not relate back.” Jones v. Bernanke, 557
F.3d 670, 674 (D.C. Cir. 2009) (quoting United States v. Hicks, 283 F.3d 380, 388 (D.C. Cir.
2002)). Nor does an amended claim that has some elements and facts in common with the
original claim relate back if the “whole thrust of the amendments is to fault [the defendants] . . .
for conduct different from that identified in the original complaint.” Meijer, Inc. v. Biovail
Corp., 533 F.3d 857, 866 (D.C. Cir. 2008). The Supreme Court has recently clarified that
relation back is improper when the amended claim “asserts a new ground for relief supported by
facts that differ in both time and type from those the original pleading set forth.” Mayle v. Felix,
545 U.S. 644, 650 (2005). The key question is whether the defendant had reasonable notice of
the new claim based on the original pleading. La. Wholesale Drug Co. v. Biovail Corp., 437 F.
Supp. 2d 79, 87 (D.D.C. 2006).
Palmer argues that relation back is appropriate because her original Complaint stated a
RESPA claim and the Amended Complaint merely elaborated upon that claim. See Opp’n at 7.
On its face, the original Complaint does not appear to actually assert a RESPA claim. However,
the Court must liberally construe the allegations in favor of Palmer because her Complaint was
filed pro se. Brown v. District of Columbia, 514 F.3d 1279, 1283 (D.C. Cir. 2008). Under that
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liberal standard, the suggestion on page 2 of the Complaint that Homecomings had “liability for
Failure to Comply with any provision of Section 6 RESPA (24 CFR 3500.21)” is sufficient to
state a claim for a RESPA violation. However, the claim asserted is a violation of RESPA
Section 6, 12 U.S.C. § 2605, relating to the servicing of mortgage loans, not a violation of
RESPA Section 8, as asserted in the Amended Complaint. RESPA Section 6 requires mortgage
lenders to disclose to loan applicants whether the servicing of the loan may be assigned, sold, or
transferred to any other person at any time while the loan is outstanding and imposes specific
notice requirements when such a transfer occurs. See 12 U.S.C. § 2605. Palmer’s original
Complaint therefore appears to charge that Homecomings failed to disclose to her either that her
loan could be transferred or that it subsequently was transferred.
Careful scrutiny of the original Complaint reveals, however, that Palmer did not include
any allegations pertaining to excessive fees or the arrangement between Homecomings and any
mortgage broker. Indeed, the only statements that could plausibly be interpreted as pertaining to
misrepresentations made at the closing are conclusory allegations embedded in the counts for the
other listed causes of action. For example, in the “Breach of Contract” count, Palmer claims that
“[t]he Bank had a legal obligation to the Owner to disclose information that may affect the
Owner” and that “[t]he Bank breached that obligation by hiding critical information about the
contracted transaction.” Compl. at 8. In the “Constructive Fraud” count, Palmer claims that
“[t]he Bank made a false representation(s) of material fact . . . .” Id. at 9. However, these
allegations can only be logically interpreted as relating to the central thrust of the original
Complaint—that Homecomings is not the legal owner of the debt and therefore cannot foreclose
on it.
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The “conduct, transaction, or occurrence” language of Rule 15(c) cannot be interpreted so
broadly as to apply to all of the parties’ actions regarding the refinancing agreement. See Mayle
v. Felix, 545 U.S. at 660-64 (rejecting the view that an entire criminal trial could constitute a
transaction or occurrence for the relation back of a habeas petition amendment). The RESPA
claim asserted in the Amended Complaint “differs in both time and type” from the claims set
forth in the original Complaint because it focuses on alleged agreements between Homecomings
and the mortgage broker and fees that were imposed at the closing. The original Complaint
focuses on a different set of facts and a different set of claims pertaining to the transfer of
ownership of the loan after the closing. Homecomings could not have reasonably anticipated that
a RESPA claim based on dealings with mortgage brokers would become part of the litigation
based on the facts Palmer alleged in the Complaint. Accordingly, Palmer’s RESPA claim does
not relate back to the filing of her original Complaint and is time-barred. The Court shall
therefore grant Homecomings’ motion to dismiss Palmer’s RESPA claim.
B. ECOA Statute of Limitations
Palmer’s Third Amended Complaint raises, for the first time, a claim under the Equal
Credit Opportunity Act. See Third Am. Compl. ¶¶ 35-46. The statute of limitations for claims
under the ECOA is two years from the date of the occurrence of the violation. 15 U.S.C. §
1691e(f); Stovall v. Veneman, 394 F. Supp. 2d 21, 25 (D.D.C. 2005). Palmer alleges that
Homecomings violated the ECOA by discriminating against her in the terms of the loan that she
was offered. See Third Am. Compl. ¶¶ 37-46. Therefore, her cause of action under the ECOA
accrued no later than April 2007, when she signed the loan documents. See Mills v. Equicredit
Corp., 294 F. Supp. 2d 903, 909 (E.D. Mich. 2003) (“Any violation of the [ECOA] occurred on
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the dates that the Plaintiffs signed the loan agreements.”). Palmer filed her Third Amended
Complaint on July 9, 2009, more than two years after she obtained the loan.
Palmer contends that her ECOA claim is timely because it relates back to the filing of her
Amended Complaint. See Opp’n at 4. As this Court noted in its June 25, 2009 Memorandum
Opinion, the Amended Complaint states that Palmer brought her case pursuant to various
statutes, including the ECOA. See Am. Compl. ¶ 2. However, Palmer failed to actually
articulate any ECOA claim in the Amended Complaint. Accordingly, this Court required Palmer
to clarify whether she actually intended to assert such a claim in her Amended Complaint. See
[32] Memo. Op. at 14; [31] Order (June 25, 2009). Palmer subsequently filed a [34] Notice of
Clarification indicating that Palmer intended to pursue her ECOA claim, and shortly thereafter
filed her Third Amended Complaint explicitly containing that claim.
As with the RESPA claim, Homecomings contends that Palmer’s ECOA claim does not
relate back because it is not based on the same conduct, transaction, or occurrence as that alleged
in the earlier pleading. See Def.’s Reply at 4. Unlike the original Complaint, however, the
Amended Complaint filed in October 2008 states claims directly related to the refinancing
transaction that underlies Palmer’s ECOA claim. Specifically, the factual allegations in the
Amended Complaint include the following:
24. Although [Palmer’s] Credit Score was in excess of 700, she was given a loan
with an interest rate in excess of 8.00 percent. This is well in excess of the
normal rate for borrowers with her credit history.
25. In addition, Ms. Palmer was charged excessive fees for obtaining the loan.
...
31. As a result of the refinance transaction, Ms. Palmer went from having a
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reasonable mortgage payment to undertaking to pay an excessive amount.
32. GMAC and Homecomings Financial engaged in fraudulent or deceptive
conduct in their dealings with Ms. Palmer, including, but not limited to . . .
[f]unding the loan at an excessive lending rate.
Am. Compl. ¶¶ 24-25, 31-32. In addition, the Amended Complaint stated claims under RESPA,
the Home Ownership and Equity Protection Act of 1994 (“HOEPA”), 15 U.S.C. §§ 1602 et seq.,
the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601 et seq., and the Home Loan Protection
Act of 2002, D.C. Code § 26-1151 et seq. The RESPA and HOEPA claims in particular focus on
the conduct of Homecomings in negotiating the terms of the loan.
Palmer’s ECOA claim in her Third Amended Complaint also incorporates additional
allegations not found in the earlier Amended Complaint, namely that Homecomings’ actions and
policies were discriminatory on the basis of race and/or sex. But Palmer has essentially ascribed
a different motive to the same set of facts. The facts essential to the ECOA claim are that
Palmer, an African-American female, was charged a disproportionately high amount for a loan
given her credit worthiness. Palmer’s failure to plead that she is an African-American woman in
her Amended Complaint does not change the transaction on which her ECOA claim is based.
Unlike the original Complaint filed by Palmer, the Amended Complaint is based on
Homecomings’ conduct in negotiating the refinancing transaction, and Palmer’s ECOA claim is
also based on this conduct and transaction. Accordingly, it relates back under the standard set
forth in Rule 15(c). Homecomings cannot plausibly claim it lacked notice of the ECOA claim
given Palmer’s explicit inclusion of the sentence—intentional or otherwise—stating that Palmer
brought her case under several statutes including the Equal Credit Opportunity Act. Am. Compl.
¶ 2. Therefore, the ECOA claim alleged in the Third Amended Complaint relates back to the
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Amended Complaint and is not barred by the two-year statute of limitations.
C. Failure to State an ECOA Claim
Homecomings contends that Palmer’s ECOA claim must be dismissed because the
allegations in her Third Amended Complaint do not state a claim for relief under the statute and
are too conclusory to show that her claim is plausible. See Def.’s Mem. at 6-8. Palmer disputes
this and argues that she has properly pled a disparate impact claim under the ECOA.2 See Opp’n
at 5. The ECOA bars discrimination by creditors against any credit applicant “with respect to
any aspect of a credit transaction . . . on the basis of race, color, religion, national origin, sex or
marital status.” 15 U.S.C. § 1691(a). There appears to be agreement among the federal courts
that disparate impact claims are permissible under the ECOA. See Barrett v. H & R Block, Inc.,
Civ. Action No. 08-10157-RWZ, 2009 WL 2476526, at *2 (D. Mass. Feb. 6, 2009) (“Although
the First Circuit has not decided whether disparate impact claims are permissible under the
ECOA, the circuit courts and many district courts that have decided the issue have uniformly
concluded that they are.”); see also A.B. & S. Auto Serv., Inc. v. S. Shore Bank of Chicago, 962 F.
Supp. 1056, 1060 (N.D. Ill. 1997) (“A credit applicant can prove discrimination under the ECOA
2
Palmer does not argue that she is asserting a disparate treatment claim, and it is not
apparent from the Third Amended Complaint that she intended to assert one. In her opposition
brief, Palmer explicitly argues that she “states a disparate impact claim under the ECOA,”
defines the prima facie case for only a disparate impact claim, and never uses the phrase
“disparate treatment.” See Opp’n at 5-7. Although the Third Amended Complaint might
possibly be construed to state a claim for disparate treatment, “[t]he court’s role is not to act as an
advocate for the plaintiff and construct legal arguments on [her] behalf in order to counter those
in the motion to dismiss.” Stephenson v. Cox, 223 F. Supp. 2d 119, 122 (D.D.C. 2002). Because
Palmer is now represented by counsel (and was when she filed her Third Amended Complaint),
the court has no obligation to construe her pleadings more liberally than she explicitly argues in
her briefs. Accordingly, the Court does not consider whether the Third Amended Complaint may
state a claim for disparate treatment under the ECOA.
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by using any one of the following three different approaches used in the employment
discrimination context: 1) direct evidence of discrimination; 2) disparate impact analysis, also
called the ‘effects’ test; or 3) disparate treatment analysis.”) The D.C. Circuit has not yet
expressed an opinion on this question, but it has assumed without deciding that disparate impact
claims are cognizable under the ECOA. See Garcia v. Johanns, 444 F.3d 625, 633 & n.9 (D.C.
Cir. 2006).
In Garcia, the D.C. Circuit said that a disparate impact claim “would require a plaintiff to
‘identify a specific policy or practice which the defendant has used to discriminate and must also
demonstrate with statistical evidence that the practice or policy has an adverse effect on the
protected group.’” Id. at 633 (quoting Powell v. Am. Gen. Fin., Inc., 310 F. Supp. 2d 481, 487
(N.D.N.Y. 2004)). A plaintiff need not plead every element of a prima facie case of
discrimination in order to survive a motion to dismiss. Howard v. Gutierrez, 571 F. Supp. 2d
145, 159 (D.D.C. 2008). However, the plaintiff must allege facts that, if true, would establish the
elements of each claim. Id.Palmer’s disparate impact claim is first identified in paragraph 42 of her Third Amended
Complaint:
Homecomings designed, disseminated, controlled, implemented and profited from
the discriminatory policy and practice alleged herein (the discretionary pricing policy
adopted by Defendant and clearly delineated above) which has had a disparate
economic impact on an African American female homeowner compared to similarly-
situated males and/or Caucasians.
Third Am. Compl. ¶ 42. Palmer goes on to allege that “[a]s a result of Homecomings[’]
discretionary pricing policy, Homecomings has collected disproportionately more in finance
charges from an American American female homeowner than from similarly-situated male
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and/or Caucasian persons for reasons totally unrelated to credit risk.” Id. ¶ 44. Although Palmer
claims that the “discretionary pricing policy adopted by Defendant” is “clearly delineated above,”
it is not overwhelmingly clear what Palmer is referring to as the “discretionary pricing policy.”
Initially, Palmer’s ECOA claim appears to focus on the fact that Palmer was charged “inflated
fees” that she believes were the direct result of discrimination in the origination and servicing of
the loan. See id. ¶¶ 37-40. Those allegations, however, do not specifically identify any policy or
practice as the source of the discriminatory impact. However, Palmer does claim in paragraph 18
of her Third Amended Complaint that “Homecomings also has a policy or practice of not
limiting or restricting the amount of the brokers’ fees, and of not requiring that the brokers’ fees
bear any reasonable relationship to services provided to the consumer.” Id. ¶ 18. Although
Palmer’s description of the policy is not very elaborate, it is sufficient at this stage in the
proceedings to survive a motion to dismiss.3
However, Palmer’s disparate impact claim is deficient because it does not sufficiently
plead a connection between the discretionary pricing policy and a disparate impact on a protected
group. Most significantly, Palmer only alleges a disparate impact on herself. See Third Am.
Compl. ¶¶ 42, 44. She does not actually allege that Homecomings’ policies have had a
discriminatory impact on a whole protected class, nor does she allege any facts relating to the
discriminatory impact of such policies. At least one court in this District has dismissed a
disparate impact claim where the plaintiff failed to allege any sort of statistical disparity. See
3
The Court notes that plaintiffs in other cases have also alleged disparate impact claims
under the ECOA on the basis of the defendant’s “discretionary pricing policy.” See, e.g., In re
Wells Fargo Residential Mortgage Lending Discrim. Litig., No. C 08-1930, 2009 WL 1771368,
at *1 (N.D. Cal. June 19, 2009); Barrett, 2009 WL 2476526 at *3; Miller v. Countrywide Bank,
N.A., 571 F. Supp. 2d 251, 255-56 (D. Mass. 2008).
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Brady v. Livingood, 360 F. Supp. 2d 94, 100 (D.D.C. 2004) (“Common sense and fairness . . .
dictate that a plaintiff, at a minimum, allege some statistical disparity, however elementary, in
order for the defense to have any sense of the nature and scope of the allegation the plaintiff is
seeking to prove.”) Palmer’s allegations simply do not amount to a claim of disparate impact
under the ECOA.4
Because it appears that the deficiency in Palmer’s Third Amended Complaint may be
technical, i.e., she failed to allege that other African-American females were adversely affected
by the allegedly discriminatory policy, the Court shall afford Palmer an opportunity to cure the
defect. Rather than immediately dismiss Palmer’s ECOA claim, the Court shall hold in abeyance
its ruling and allow Palmer to amend her pleadings to state a proper disparate impact claim under
the ECOA if she has a good faith basis for doing so. The Court shall only grant leave for Palmer
to amend her pleadings for this limited purpose, and this shall be Palmer’s final opportunity to
state her ECOA claim.
IV. CONCLUSION
For the foregoing reasons, the Court shall GRANT IN PART Defendant’s [38] Motion to
Dismiss Plaintiff’s Third Amended Complaint with respect to Plaintiff’s RESPA claim and
HOLD IN ABEYANCE IN PART its ruling with respect to Plaintiff’s ECOA claim. The Court
shall grant leave for Plaintiff to amend her pleadings to state a claim for disparate impact under
4
Palmer attempts to supplement her allegations by attaching exhibits to her opposition
brief indicating that Homecomings is under investigation by the Federal Trade Commission for
possible ECOA violations. Because a motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of the complaint, however, the Court does not consider these materials. The Court
notes, though, that Palmer’s complaint would still be deficient even if Palmer had attached these
exhibits to her complaint because her pleadings do not indicate that Homecomings’ policies have
impacted anyone other than herself.
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the ECOA, and if Palmer fails to do so within the time set by the Court, the Court shall grant
Defendant’s motion to dismiss the ECOA claim. An appropriate Order accompanies this
Memorandum Opinion.
Date: January 6, 2009
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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