Rivera v. Rosenberg & Associates, LLC

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
ANTHONY RIVERA, )
)
Plaintiff, )
)
v. ) Civil Action No. 15-0635 (ABJ)
)
ROSENBERG & ASSOCIATES, LLC, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
Plaintiff Anthony Rivera brings this action against defendant Rosenberg & Associates,
LLC, claiming that defendant violated the Fair Debt Collection Practices Act (“FDCPA”), 15
U.S.C. § 1692 et seq., when it attempted to collect on plaintiff’s mortgage debt and threatened
foreclosure against plaintiff’s property without having the legal authority to do so. Am. Compl.
[Dkt. # 9]. Plaintiff also brings an FDCPA claim on behalf of a class of property-owning residents
of the District of Columbia, challenging similar alleged misconduct by defendant. Id. ¶¶ 39, 50–
51. Defendant moved to dismiss the complaint on the grounds that plaintiff lacks standing to bring
his claims and further, that he has failed to state a claim upon which relief can be granted. Def.’s
Mot. to Dismiss Pl.’s 1st Am. Compl. [Dkt. # 10] (“Def.’s Mot.”); Mem. of P. & A. in Supp. of
Def.’s Mot. [Dkt. # 10-1] (“Def.’s Mem.”). Because the Court finds that plaintiff lacks standing
to challenge an assignment of interest to which he was not a party or a foreclosure that has not
taken place, and because the amended complaint fails to state a plausible claim under the FDCPA
in any event, the Court will grant defendant’s motion and dismiss the case.
BACKGROUND
In August 2001, plaintiff obtained a mortgage loan from North American Mortgage
Company (“NAMCO”) to purchase a property located at 817 4th Street, NE, Washington, D.C.
Am. Compl. ¶ 6. Plaintiff executed a promissory note and deed of trust in exchange for the loan
from NAMCO. 1 Id. Soon after, NAMCO assigned its interest in the deed of trust to State Street
Bank and Trust Company. Id. ¶ 8. After plaintiff received the loan from NAMCO, plaintiff states
that Washington Mutual (“WaMu”) became the servicer of the loan and that he made mortgage
payments to WaMu from 2002 to 2009. Id. ¶¶ 7, 9.
Plaintiff alleges that at some unspecified time, JPMorgan Chase Bank, N.A. (“JPMC”)
claimed to have acquired WaMu’s interest in plaintiff’s mortgage loan. Id. ¶ 10. He states that at
some point in 2009, he “was advised by JPMC, or its agent Shapiro & Burson, to make the
[mortgage] payment to JPMC” instead of WaMu. Id. ¶ 11. Plaintiff notified JPMC that he would
not make mortgage payments to JPMC unless it established that it was the proper “holder” of the
promissory note, which he contends JPMC failed to do. Id. ¶¶ 12–18. He thus alleges that JPMC
“was not legally entitled to enforce the promissory note because it was not the ‘holder,’” and that
he “had no legal obligation” to pay JPMC. Id. ¶¶ 16–17.
Plaintiff claims that, instead of responding to his request that it produce the promissory
note or other documentation showing that it was the “holder” of the note, JPMC “initiated an illegal
1 Defendant attached the promissory note and deed of trust as exhibits to its motion to
dismiss. Ex. A to Def.’s Mot. [Dkt. # 10-2] (promissory note); Ex. B to Def.’s Mot. [Dkt. # 10-3]
(deed of trust). Because plaintiff incorporated these documents by reference in the amended
complaint, see Am. Compl. ¶ 6, the Court may properly consider them in ruling on defendant’s
motion to dismiss. See Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (“In
deciding whether to dismiss a claim under Rule 12(b)(6), the Court may only consider the facts
alleged in the complaint, documents attached as exhibits or incorporated by reference in the
complaint, and matters about which the Court may take judicial notice.”), citing EEOC v. St.
Francis Xavier Parochial Sch., 117 F.3d 621, 624–25 (D.C. Cir. 1997).
2
foreclosure procedure” to take control of the property. Id. ¶ 19. Plaintiff filed a temporary
restraining order and a complaint for wrongful foreclosure against JPMC. Id. ¶ 20. He states that
the foreclosure was terminated and the complaint was dismissed in April 2012 “on the basis that
no foreclosure occurred and therefore no . . . cause of action existed for a wrongful foreclosure
action.” Id. ¶¶ 21–22; see also Ex. F to Def.’s Mot. [Dkt. # 10-7] (order granting JPMC’s motion
for summary judgment and dismissing plaintiff’s wrongful foreclosure claims). 2
Plaintiff states that from May 2012 to April 2014, he sent numerous letters to JPMC
requesting a certified copy of the promissory note. Am. Compl. ¶ 25. He alleges that on April 17,
2014, JPMC responded “with a copy of the promissory note payable to NAMCO with no
endorsements.” Id. ¶ 27.
On October 9, 2014, defendant sent plaintiff a letter that identified JPMC as the servicer of
plaintiff’s mortgage and stated that his loan had been referred to defendant for foreclosure based
upon a default in plaintiff’s mortgage payments totaling $368,467.16. Id. ¶¶ 28–29. Plaintiff
alleges that as of that date, JPMC had not yet appointed defendant as the substitute trustee, and
that JPMC only appointed defendant as the substitute trustee on October 17, 2014. Id. ¶¶ 30–31.
Thus, plaintiff contends that defendant had no rights to exercise against the property on October
9, 2014, when defendant sent plaintiff the letter. Id. ¶¶ 31–32. He further contends that JPMC’s
appointment of defendant as the substitute trustee on October 17, 2014 was invalid because “JPMC
was not the assignee of the Deed of Trust nor the payee of the promissory note” and therefore
“JPMC had no legal authority to appoint [defendant] the trustee” to the deed of trust. Id. ¶¶ 34–
2 The Court may take notice of the opinion in the related case for the purposes of resolving
defendant’s motion to dismiss. See Covad Commc’ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222
(D.C. Cir. 2005) (stating that, in deciding a motion to dismiss, a court may take “judicial notice of
facts on the public record” by “consult[ing] the relevant opinions” in prior cases), quoting Marshall
Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1228 (D.C. Cir. 1993).
3
37. Thus, plaintiff contends that defendant “is not the trustee to the subject deed of trust and is
without any legal right to conduct a foreclosure” against the property. Id. ¶ 38.
Plaintiff initiated this action on April 7, 2015, before the Superior Court of the District of
Columbia, and defendant removed the action to this Court on April 27, 2015. Notice of Removal
[Dkt. # 1]. Plaintiff filed an amended complaint on June 17, 2015, alleging in Count I that
“Defendant violated 15 U.S.C. § 1692” by:
a. Misrepresenting that it was duly appointed substitute trustee by an
authorized party to the deed of trust or promissory note;
b. Falsely representing the legal status of the debt as being in
foreclosure;
c. Falsely representing the amount of the debt owed to JPMC;
d. Failing to validate the debt pursuant to Plaintiff’s specific dispute
and request for verification; and
e. Threatening to dispose of the Property at a foreclosure sale.
Am. Compl. ¶ 46. In Count II, plaintiff also brings a claim on behalf of a class of property-owning
residents of the District of Columbia, contending that “Defendant violated 15 U.S.C. § 1692 by
misrepresenting it had rights against [his] and Class members’ properties in its debt collection
attempts,” and by “misrepresenting that it could begin foreclosure on [his] and Class members’
properties,” “before it was appointed the substitute trustee.” Id. ¶¶ 39, 50–51.
On July 1, 2015, defendant moved to dismiss the amended complaint pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). Def.’s Mem. at 1. Plaintiff opposed the motion
on July 20, 2015, Pl.’s Opp. to Def.’s Mot. [Dkt. # 12] (“Pl.’s Opp.”), and defendant filed a reply
on July 27, 2015. Reply Mem. in Supp. of Def.’s Mot. [Dkt. # 13] (“Def.’s Reply”). With leave
of Court, see Min. Order (Aug. 12, 2015), plaintiff filed a surreply on August 19, 2015. Pl.’s
Surreply to Def.’s Reply [Dkt. # 15] (“Pl.’s Surreply”).
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STANDARD OF REVIEW
In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must
“treat the complaint’s factual allegations as true . . . and must grant plaintiff ‘the benefit of all
inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216
F.3d 1111, 1113 (D.C. Cir. 2000) (internal citations omitted), quoting Schuler v. United States,
617 F.2d 605, 608 (D.C. Cir. 1979); see also Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139
(D.C. Cir. 2011). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those
inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff’s
legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
I. Subject Matter Jurisdiction
Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a
preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992);
Shekoyan v. Sibley Int’l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts of
limited jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp.
v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin, and end,
with an examination of our jurisdiction.”). “[B]ecause subject-matter jurisdiction is ‘an Art[icle]
III as well as a statutory requirement . . . no action of the parties can confer subject-matter
jurisdiction upon a federal court.’” Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir.
2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702
(1982).
When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a
motion to dismiss under Rule 12(b)(6), the court “is not limited to the allegations of the complaint.”
5
Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S.
64 (1987). Rather, “a court may consider such materials outside the pleadings as it deems
appropriate to resolve the question [of] whether it has jurisdiction to hear the case.” Scolaro v.
D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat’l
Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharms., Inc. v. FDA,
402 F.3d 1249, 1253 (D.C. Cir. 2005).
II. Failure to State a Claim
“To survive a [Rule 12(b)(6)] 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 claim
is facially plausible when the pleaded factual content “allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. at 678, citing Twombly, 550
U.S. at 556. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Id., quoting Twombly, 550
U.S. at 556. A pleading must offer more than “labels and conclusions” or a “formulaic recitation
of the elements of a cause of action,” id., quoting Twombly, 550 U.S. at 555, and “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id., citing Twombly, 550 U.S. at 555.
ANALYSIS
I. To the extent that plaintiff seeks to use his FDCPA claims to attack JPMC’s authority
to appoint defendant as the substitute trustee or to challenge any future foreclosure
against his property, he lacks standing to do so.
“To state a case or controversy under Article III, a plaintiff must establish standing.”
Arizona Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1442 (2011), citing Allen v. Wright,
6
468 U.S. 737, 751 (1984); see also Lujan, 504 U.S. at 560. Standing is a necessary predicate to
any exercise of federal jurisdiction, and if it is lacking, then the dispute is not a proper case or
controversy under Article III, and federal courts have no subject-matter jurisdiction to decide the
case. Dominguez v. UAL Corp., 666 F.3d 1359, 1361 (D.C. Cir. 2012).
Defendant contends that “Plaintiff is not a party to the mortgage assignment between his
originating lender and his current lender with standing to challenge the validity of such
assignment,” and further, it asserts that plaintiff “lacks standing to challenge his lender’s right to
foreclose on his real property because foreclosure has neither taken place nor is currently pending
against the property.” Def.’s Mem. at 2. Plaintiff responds that there is no allegation in the
amended complaint challenging an assignment, and that he is alleging instead that “the Note has
not been endorsed to the Defendant’s principal,” and therefore, “Defendant has no rights in the
Deed of Trust.” Pl.’s Opp. at 4, citing Am. Compl. ¶¶ 13–16, 27, 32–33, 38. In other words,
plaintiff contends that JPMC was not the proper assignee of the deed of trust or the payee of the
promissory note and it therefore lacked the authority to appoint defendant as substitute trustee.
But an individual who is not a party to, or an intended beneficiary of, an assignment
agreement lacks standing to challenge the validity of the assignment. See, e.g., Taylor v. Wells
Fargo, N.A., 85 F. Supp. 3d 63, 71 (D.D.C. 2015) (“Plaintiff does not have standing to challenge
the validity of any assignment of the Note and Deed of Trust because Plaintiff has not pled any
facts showing that he is ‘a party to, or an intended beneficiary of, the assignment agreement.’”),
quoting Jessup v. Progressive Funding, 35 F. Supp. 3d 25, 35 (D.D.C. 2014) (holding that the
plaintiff did not have standing to challenge assignment of loan since she was not a party to the
assignment); Bank of New York Mellon Trust Co. N.A. v. Henderson, No. CV 14-747, 2015 WL
3484990, at *2 (D.D.C. May 28, 2015) (“Because defendant has not alleged that he is either a party
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to, or an intended beneficiary of, the assignment of the Note and Deed of Trust, he does not have
standing to attack the assignment.”). As another judge in this District recently explained, the
rationale for such a rule in this context is a sound one:
[F]inding that defendant lacks standing to attack the assignment [where he
was not party to the assignment] makes good sense: the assignment does
not affect defendant’s rights or obligations at all. Regardless of whether the
Note and Deed of Trust were properly assigned, defendant was still required
to make timely payments on his mortgage and, by the plain terms of the
Note and Deed of Trust, he is subject to foreclosure upon default.
Henderson, 2015 WL 3484990, at *2.
This general principal of law has been applied specifically in the FDCPA context, and it
demonstrates why plaintiff lacks standing here. In Clark v. Lender Processing Services, Inc., 949
F. Supp. 2d 763 (N.D. Ohio 2013), aff’d sub nom. Clark v. Lender Processing Services, 562 F.
App’x 460 (6th Cir. 2014), the plaintiffs’ mortgages were assigned from the originating banks to
other banks, and were eventually foreclosed upon by the defendants, a group of loan processing
companies and law firms. Id. at 767–68. The plaintiffs alleged that the defendants had violated
the FDCPA by fabricating mortgage assignments, fraudulently endorsing affidavits, and
backdating mortgage transfers, in order to initiate foreclosure actions on behalf of trusts that
otherwise lacked standing to foreclose. Id. The defendants countered that the plaintiffs “lack[ed]
standing to assert any claim under the FDCPA . . . based on allegedly faulty assignments of the
notes and mortgages . . . because [the plaintiffs] are not parties to the agreements.” Id. at 770.
The court agreed with the defendants that “even if there were a flaw in the assignment, [a
plaintiff] does not have standing to raise that flaw to challenge [the] chain of title,” because “[a]
litigant who is not a party to an assignment lacks standing to challenge that assignment.” Id. at
771, quoting Livonia Props. Holdings, LLC v. 12840-12976 Farmington Rd. Holdings, LLC, 399
F. App’x 97, 102 (6th Cir. 2010). It thus found that because the plaintiffs “lack[ed] standing to
8
challenge the allegedly faulty assignments relating to the mortgages,” they therefore also “lack[ed]
standing to assert any claim under the FDCPA.” Id.
Like the plaintiffs in Clark, plaintiff bases his FDCPA claims here, at least in part, on his
contention that the transfer of his mortgage debt from his original lender to JPMC was flawed.
Specifically, he contends that JPMC failed to produce evidence showing that it was the “holder”
of the promissory note executed in exchange for the loan. Am. Compl. ¶¶ 6, 12–19, 25–27.
Without being the holder, plaintiff argues, JPMC “had no legal authority to appoint [defendant]
the trustee,” id. ¶ 37, and defendant therefore “has no rights in the Deed of Trust.” Pl.’s Opp. at
4. This contention – that the transfer of interest to JPMC was flawed and that JPMC therefore
could not appoint defendant as substitute trustee – is at the heart of plaintiff’s first FDCPA claim:
that defendant “[m]isrepresent[ed] that it was duly appointed trustee by an authorized party to the
deed of trust or promissory note.” Am. Compl. ¶ 46(a). But plaintiff does not allege that he was
party to, or the beneficiary of, any assignment to JPMC of the interest in his property. Therefore,
to the extent that his first FDCPA claim is premised on the notion that the transfer of interest to
JPMC was flawed, plaintiff lacks standing to assert it, as he has not alleged that he was a party to,
or beneficiary of, any assignment of interest between those parties. 3
3 Plaintiff relies on Clarke v. Dunn, No. CIV.A. DKC 13-2330, 2014 WL 4388344 (D. Md.
Sept. 4, 2014), for the proposition that he has standing to challenge defendant’s appointment as
substitute trustee. See Pl.’s Opp. at 4–5. In that case, the counter-plaintiffs asserted that the
substitute trustees violated the FDCPA by “attempt[ing] to collect on their debt by foreclosing on
their Property using false pretenses.” Clarke, 2014 WL 4388344, at *3. But the standing issue
was not discussed, and in any event, that case is distinguishable because the counter-plaintiffs had
alleged that the trustees “knew they were not legally authorized agents, implying that their actions
were fraudulent.” Id. at *5 (internal citations omitted). The amended complaint in this case
contains no such allegation, and as discussed below, plaintiff otherwise entirely fails to state a
claim under the FDCPA. Thus, Clarke is not dispositive of the Court’s analysis here.
9
Similarly, plaintiff is without standing to assert his claim that defendant violated the
FDCPA by “[f]alsely representing the amount of the debt owed to JPMC.” Id. ¶ 46(c). This
allegation, as plaintiff himself acknowledges, is based on plaintiff’s claim “that he does not owe
[JPMC] any amount because [JPMC] is not the holder of the Note.” Pl.’s Opp. at 13. At bottom,
this is simply another attempt by plaintiff to challenge the validity of the transfer of interest to
JPMC, which plaintiff cannot do because he was not a party to the assignment.
The same is true of plaintiff’s claim that defendant violated the FDCPA by “[f]alsely
representing the legal status of the debt as being in foreclosure,” and “[t]hreatening to dispose of
the Property at a foreclosure sale.” Am. Compl. ¶ 46(b), (e). Plaintiff does not deny that his
mortgage was in default, and in fact, he affirmatively acknowledges that he refused to make
payments to JPMC beginning in 2009. See id. ¶¶ 9–19, 25–27 (stating that plaintiff would only
agree to make mortgage payments to JPMC “on the condition that JPMC established that it was
the ‘holder’ of the note,” and alleging that JPMC failed to do so). Instead, his claims relating to
the impropriety of defendant’s communications regarding a potential foreclosure are based on the
same allegations that JPMC lacks the authority to enforce the promissory note “because it was not
the ‘holder’ of the promissory note,” and that defendant lacks the authority to foreclose because it
“is not the trustee to the subject deed of trust and is without any legal right to conduct a
foreclosure.” Id. ¶¶ 16, 38. Therefore, insofar as these aspects of plaintiff’s FDCPA claim are
contingent upon plaintiff’s allegation that the transfer of interest in his mortgage loan was faulty,
he is without standing to assert them.
Finally, to the extent that plaintiff is attempting through this lawsuit to block any future
foreclosure efforts by defendant or JPMC, he lacks standing to do so. That is because a borrower’s
allegation that a lender “commenced or authorized the commencement of foreclosure proceedings
10
where payments have not been made or received . . . does not indicate an actual or imminent, rather
than a conjectural or hypothetical, injury.” Rajamin v. Deutsche Bank Nat. Trust Co., 757 F.3d
79, 85 (2d Cir. 2014) (internal citation and quotation marks omitted). In other words, an attempted
or threatened foreclosure, as opposed to an actual, realized foreclosure, cannot create the injury-
in-fact required to generate constitutional standing. See, e.g., Taylor, 85 F. Supp. 3d at 70 n.2 (“It
is unclear whether Plaintiff even has standing himself . . . because Plaintiff appears primarily to be
alleging that Defendants ‘attempted’ to foreclose on his property, not that Plaintiff’s Property has
been foreclosed or is even in the process of being foreclosed.”), citing Rajamin, 757 F.3d at 85.
Plaintiff has not alleged anywhere in the amended complaint that his property is the subject of
ongoing or completed foreclosure proceedings; rather, as he recognizes, the only foreclosure action
identified as having been taken against his property was terminated. Id. ¶ 21. Thus, to the extent
plaintiff seeks to use the FDCPA to attack the ability of JPMC and defendant to foreclose on his
property in the future, he cannot do so here. 4
4 In his opposition to defendant’s motion, plaintiff contends that the FDCPA itself, by
creating a statutory right to be free from harassing debt collection practices, invests him with
standing to bring his claims. Pl.’s Opp. at 2–3. As a general matter, plaintiff is correct that
“[t]he . . . injury required by Art[icle] III may exist solely by virtue of ‘statutes creating legal
rights, the invasion of which creates standing,’” Lujan, 504 U.S. at 578, quoting Warth v. Seldin,
422 U.S. 490, 500 (1975). But the thrust of the majority of plaintiff’s allegations is not an FDCPA
violation by defendants, but a challenge to JPMC’s authority to appoint defendant as the substitute
trustee, and to foreclose on plaintiff’s property without being the holder of the promissory note.
As discussed, he lacks standing to bring these claims.
To the extent that plaintiff has articulated an actual FDCPA violation, as discussed below,
he may indeed have standing to bring this suit to vindicate his statutory rights. See, e.g., Molina
v. FDIC, 870 F. Supp. 2d 123, 132 (D.D.C. 2012) (“For claims under the FDCPA, a plaintiff is not
required to show actual damages, but he must at least allege that the defendant made an unlawful
attempt to recover his debt.”), citing Muldrow v. EMC Mortg. Corp., 766 F. Supp. 2d 230, 235 &
n.1 (D.D.C. 2011). But because the Court finds that plaintiff has failed to state a plausible claim
upon which relief can be granted, dismissal is still warranted.
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II. The Court will dismiss Count I, plaintiff’s individual FDCPA claim, pursuant to
Rule 12(b)(6).
Even assuming plaintiff has standing to bring his claims, he still fails to state a plausible
claim under the FDCPA, and dismissal is warranted pursuant to Rule 12(b)(6).
A. Plaintiff does not indicate upon which provision of the FDCPA he bases his
individual and class claims.
In the amended complaint, plaintiff did not identify the specific provision of the FDCPA
that underlies his individual and class claims against defendant. And even after defendant moved
to dismiss on this basis, see Def.’s Mot. at 15–16, plaintiff failed to address that omission in his
opposition. Instead, in both pleadings, he cites generally to the statute at large. See, e.g., Am.
Compl. ¶ 1 (“This is an action for actual and statutory damages, costs and attorney’s fees brought
pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq.”); Pl.’s Opp. at 5
(“Plaintiff has sufficiently alleged the Defendant violated the FDCPA when it misrepresented that
it was a lawful substitute trustee during its attempts to collect on the debt.”). He alleges that
“Defendant violated 15 U.S.C. § 1692” in several ways, Am. Compl. ¶¶ 46, 50–51, but that
particular provision is the FDCPA’s statement of Congressional findings and declaration of
purpose, and it does not provide for a cause of action. See 15 U.S.C. § 1692.
While it does not appear that courts in this Circuit have addressed whether a plaintiff is
required to identify a specific provision of the FDCPA in order to state a viable claim, other courts
have dismissed complaints for failure to do so. See, e.g., Birdette v. Capitol One Bank (USA),
N.A., No. 12-11640-F, 2012 WL 8319317, at *1 (11th Cir. July 25, 2012) (finding that the plaintiff
“failed to allege any facts to support a claim that the defendants violated the provisions of the
FDCPA” and affirming dismissal of FDCPA claim where, “although [the plaintiff] asserted that
the defendants engaged in unlawful debt practices, the complaint failed to identify which specific
12
provisions or subsections of the FDCPA formed the basis for his allegations”); cf. Conboy v. AT&T
Corp., 241 F.3d 242, 257 (2d Cir. 2001) (finding that the plaintiffs failed to state a claim under 15
U.S.C. § 1692e(11), and rejecting argument that the plaintiffs’ FDCPA claim should nevertheless
survive because they alleged that the defendant “violated ‘the FDCPA in general,’” where the
plaintiffs otherwise failed to “point to any specific substantive provision of the FDCPA”). 5
The situation before the Court is similar to the facing the Eleventh Circuit in Birdette:
Here, [the plaintiff’s] complaint consisted of broad, conclusory statements
alleging that the defendants violated the FDCPA for allegedly attempting to
collect a debt that [the plaintiff] claimed that he did not owe, and was not
obligated to pay. It contained little factual detail, save for his assertion that
he did not have an account with the defendants. Further, although [the
plaintiff] asserted that the defendants engaged in unlawful debt practices,
the complaint failed to identify which specific provisions or subsections of
the FDCPA formed the basis for his allegations. As a result, [the plaintiff]
failed to allege any facts to support a claim that the defendants violated the
provisions of the FDCPA.
2012 WL 8319317, at *1 (emphasis added). Like the plaintiff in Birdette, plaintiff here “failed to
identify which specific provisions or subsections of the FDCPA formed the basis for his
allegations.” Id. Thus, the Court finds that plaintiff has not stated a plausible claim, and it could
dismiss the amended complaint on that ground alone.
5 See also, e.g., Kantz v. Rubin Lublin, PLLC, No. 3:14-01113, 2015 WL 1543531, at *25
(M.D. Tenn. Apr. 6, 2015) (granting motion to dismiss FDCPA claim because the plaintiff “fails
to specify which provision of the FDCPA [the defendant] allegedly violated”); Koolen v. Mortg.
Elec. Registration Sys., Inc., No. 10-050S, 2010 WL 2926567, at *2 (D.R.I. June 29, 2010)
(dismissing FDCPA claim as “simply too vague and conclusory to state a viable claim” where the
plaintiff “fails to specify which provisions of the FDCPA were violated by [the defendant] and
how”), report and recommendation adopted, No. 10-50 S, 2010 WL 2926571 (D.R.I. July 22,
2010); Holbrook v. Aurora Loan Servs. LLC, No. 2:09-CV-05682-CAS-AGRx, 2010 WL 986794,
at *5 (C.D. Cal. Mar. 15, 2010) (dismissing FDCPA claim with prejudice because “critically,
plaintiff fails to specify any particular provision of the FDCPA that defendants violated”);
Harrington v. Home Capital Funding, Inc., No. 08CV1579 BTM(RBB), 2009 WL 514254, at *4
(S.D. Cal. Mar. 2, 2009) (dismissing FDCPA claim, in part because the plaintiff “generally alleges
the FDCPA was violated without specifying what provision of the FDCPA was violated and what
each Defendant did to violate it”).
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B. Even construing the complaint liberally, plaintiff fails to state a claim under
section 1692e of the FDCPA.
Although plaintiff failed to specify an FDCPA provision in his amended complaint or in
his opposition, he finally did identify one in his surreply. See Pl.’s Surreply at 1 (“Pursuant to 15
U.S.C. § 1692e, a debt collector may not ‘use any false, deceptive, or misleading representation or
means in connection with the collection of any debt.’”). A court “generally refuses to entertain
arguments raised for the first time in [a] reply brief,” Herbert v. Nat’l Acad. of Scis., 974 F.2d
192, 196 (D.C. Cir. 1992), and a surreply is normally “limited to addressing only new arguments
raised for the first time by the opposing party in their reply briefing and not included in the original
motion.” Marbury Law Grp., PLLC v. Carl, 729 F. Supp. 2d 78, 82 (D.D.C. 2010), citing
Longwood Vill. Rest., Ltd. v. Ashcroft, 157 F. Supp. 2d 61, 68 n.3 (D.D.C. 2001). Thus, the Court
could find that plaintiff’s “attempt to advance this argument for the first time in [his] Surreply is
therefore inappropriate and need not be considered.” See Saunders v. District of Columbia, 711
F. Supp. 2d 42, 63 (D.D.C. 2010), citing United States ex rel. Pogue v. Diabetes Treatment Ctrs.
of Am., Inc., 238 F. Supp. 2d 270, 276–77 (D.D.C. 2002).
But even if the Court were to construe the amended complaint generously and infer that
plaintiff seeks to allege a violation of section 1692e, the Court still finds that he has still failed to
state a plausible claim for a violation of the FDCPA. Section 1692e provides that “[a] debt
collector may not use any false, deceptive, or misleading representation or means in connection
with the collection of any debt.” 15 U.S.C. § 1692e. The only allegations in the amended
complaint regarding representations made by defendant – as opposed to JPMC – are as follows:
On October 9, 2014 [defendant] sent [plaintiff] correspondence threatening
to foreclose. In its letter [defendant] asserted the loan had been referred to
it for foreclosure based upon a default on his mortgage payments and that
“[defendant] is . . . exercising its rights against the property . . .”. While
[defendant] identified Fannie Mae as the creditor and JPMC as the servicer,
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it was silent on who was the “holder” of the Note. [Defendant] further
announced that [plaintiff] owed $368,467.16 and with interest, late charges,
and other fees the amount may increase. Continuing, [defendant] implied
payment should be made to it and that [defendant] would deposit the
payment for collection.
Am. Compl. ¶¶ 28–29. Based on this letter, plaintiff asserts that defendant violated the FDCPA in
five ways:
a. Misrepresenting that it was duly appointed substitute trustee by an
authorized party to the deed of trust or promissory note;
b. Falsely representing the legal status of the debt as being in foreclosure;
c. Falsely representing the amount of the debt owed to JPMC;
d. Failing to validate the debt pursuant to Plaintiff’s specific dispute and
request for verification; and
e. Threatening to dispose of the Property at a foreclosure sale.
Id. ¶ 46.
But a review of the letter sent by defendant to plaintiff, attached as an exhibit to defendant’s
motion to dismiss, see Ex. K to Def.’s Mot. [Dkt. # 10-12] (“Collection Letter”), 6 shows that many
of these alleged misrepresentations are entirely absent from the correspondence at issue. The
Collection Letter does not state that defendant “was appointed duly appointed substitute trustee,”
see Am. Compl. ¶ 46(a); rather, it states only that defendant “is a debt collector.” Collection Letter
at ECF 2. And it does not represent “the legal status of the [mortgage] as being in foreclosure,” or
“[t]hreaten[] to dispose of the Property at a foreclosure sale,” as plaintiff contends. See Am.
6 Because plaintiff incorporates the Collection Letter by reference in his complaint, Am.
Compl. ¶¶ 28–29, the Court may properly consider it in ruling on defendant’s motion to dismiss.
See Gustave-Schmidt, 226 F. Supp. 2d at 196 (“In deciding whether to dismiss a claim under Rule
12(b)(6), the Court may only consider the facts alleged in the complaint, documents attached as
exhibits or incorporated by reference in the complaint, and matters about which the Court may
take judicial notice.”), citing St. Francis Xavier, 117 F.3d at 624–25.
15
Compl. ¶ 46(b), (e). Rather, the Collection Letter states only that “[t]he loan has been referred for
foreclosure,” and it informs plaintiff that he “may still have foreclosure prevention alternatives
available” that would allow him to stay in his home or avoid foreclosure entirely. Collection Letter
at ECF 2, 6.
Where, as here, the complaint’s factual allegations are contradicted by exhibits
incorporated by reference in the complaint and of which the Court may take judicial notice, the
Court need no longer accept as true plaintiff’s version of events. See, e.g., Kaempe v. Myers, 367
F.3d 958, 963 (D.C. Cir. 2004) (“Nor must we accept as true the complaint’s factual allegations
insofar as they contradict exhibits to the complaint or matters subject to judicial notice.”), citing
Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002). Thus, because the Collection Letter contradicts
plaintiff’s assertions of misrepresentations relating to defendant’s role as substitute trustee or the
foreclosure status of his property, the Court finds that plaintiff has failed to plausibly allege that
defendant engaged in false, deceptive, or misleading representations in violation of the FDCPA
based on the conduct set forth in paragraphs 46(a), 46(b), and 46(e) of the amended complaint.
In paragraph 46(c) of the amended complaint, plaintiff claims that defendant violated the
FDCPA by “[f]alsley representing the amount of the debt owed to JPMC,” Am. Compl. ¶ 46(c),
when it stated in the Collection Letter that plaintiff owed a debt of $368,467.16. Id. ¶ 29; see also
Collection Letter at ECF 2. Plaintiff does not dispute the amount of this debt or the accuracy of
defendant’s calculation of that number. Rather, as plaintiff himself puts it, his claim that this
statement was false is based entirely on his belief that he “had no legal obligation to pay [JPMC]
because [JPMC] was not entitled to enforce the promissory note.” Am. Compl. ¶ 17; see also Pl.’s
Opp. at 13 (“[Plaintiff] does not owe [JPMC] any amount because [JPMC] is not the holder of the
Note.”).
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But “in the District of Columbia, a foreclosing entity need not be the holder of the Note in
order to have standing to foreclose on the related property.” Taylor, 85 F. Supp. 3d at 70 (D.D.C.
2015), citing Duffy v. Bank of Am., N.A., 13 F. Supp. 3d 57, 61 (D.D.C. 2014) (“[Plaintiff] is
incorrect that District of Columbia law requires a foreclosing institution to be the holder of the
underlying Note.”), and Diaby v. Bierman, 795 F. Supp. 2d 108, 113 (D.D.C. 2011) (holding that
“whether or not defendants are holders of the note is not dispositive as to whether they have
standing to foreclose on the property”). “The District of Columbia is a non-judicial foreclosure
jurisdiction, which ‘allows foreclosure pursuant to a power of sale provision contained in any deed
of trust.’” Id., quoting Carter v. Bank of Am., N.A., 888 F. Supp. 2d 1, 14 (D.D.C. 2012).
In Taylor, the court found that “the Deed of Trust clearly provides the Trustee with ‘power
of sale,’” and it determined that the plaintiff’s “allegation that Defendants do not hold the Note is
irrelevant to whether Defendants can foreclose on Plaintiff’s property.” Id. The same is true of
the deed of trust in this case, which states that “Borrower irrevocably grants and conveys to
Trustee, in trust, with power of sale,” the property at issue. Ex. B to Def.’s Mot. [Dkt. # 10-3] at
4. Thus, plaintiff’s assertion that “he does not owe [JPMC] any amount because [JPMC] is not
the holder of the Note,” Pl.’s Opp. at 13, is without merit. And it follows that plaintiff’s claim that
defendant violated the FDCPA by “[f]alsely representing the amount of the debt owed to JPMC,”
Am. Compl. ¶ 46(c) – which is entirely contingent, by his own admission, on his claim that he
owes JPMC nothing because it does not hold the promissory note, see Pl.’s Opp. at 13 – also fails.
Finally, the Court finds that plaintiff has failed to state a claim with regard to the conduct
identified in paragraph 46(d) of the amended complaint. Plaintiff alleges that defendant violated
the FDCPA when it “fail[ed] to validate the debt pursuant to Plaintiff’s specific dispute and request
for verification.” Am. Compl. ¶ 46. Section 1692g of the FDCPA – which plaintiff does not cite
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in his amended complaint or any of his pleadings – does require a debt collector, upon receipt of a
notice of dispute of the debt from the consumer, to cease collection activities until the debt can be
verified. 15 U.S.C. § 1692g(a)–(b). But plaintiff does not allege that he ever sent a notice to
defendant, let alone that it failed to respond to any proper notice in violation of that provision. 7
This is fatal to his FDCPA claim, as recognized in Birdette:
[The] complaint simply references a letter that [the defendant] sent him,
seeking to collect an outstanding balance of $3,520.33. However, the
FDCPA, does not make it unlawful for a debt collector to seek to recover a
debt that it does not know is disputed. See 15 U.S.C. § 1692g(b) (stating
that, if a consumer notifies the debt collector in writing, within 30 days after
receipt of an initial notice of debt, that the debt is disputed, “the debt
collector shall cease collection of the debt, or any disputed portion thereof,
until the debt collector obtains verification of the debt)”. Here, [the
plaintiff] failed to show that he notified the defendants that he disputed the
existence and amount of the debt at issue in this case.
2012 WL 8319317, at *1. Thus, the Court finds that plaintiff has failed to state a cognizable
FDCPA claim based on the allegation contained in paragraph 46(d) of the complaint.
For those reasons, the Court finds that plaintiff has failed to state a claim under any
provision of the FDCPA, and defendant’s motion to dismiss Count I will be granted in its entirety.
III. Plaintiff’s class claim in Count II of the amended complaint will also be dismissed.
The Court will also dismiss plaintiff’s class claim in Count II of the amended complaint.
Since plaintiff himself has failed to state a viable claim against defendant, he cannot act as the
class representative or “fairly and adequately protect the interests of the class.” Fed. R. Civ. P.
23(a)(4); see also Brewer v. Holder, 20 F. Supp. 3d 4, 19 (D.D.C. 2013) (finding that, because
class representative’s claims “are not viable as a matter of law, she is not an adequate
7 Plaintiff does state that he asked JPMC to establish that it was the holder of the promissory
note, and that JPMC failed to do so, Am. Compl. ¶¶ 12, 14, 25–27, but these allegations have
absolutely no bearing on defendant’s liability under the FDCPA.
18
representative of a class,” and dismissing the class claims), citing E. Texas Motor Freight Sys. Inc.
v. Rodriguez, 431 U.S. 395, 403 (1977) (holding that a plaintiff whose individual claims had failed
was not an adequate representative of class claims). 8 Furthermore, as noted above, the purported
class claims fail to specify any particular provision of the FDCPA that was allegedly violated. See
Am. Compl. ¶¶ 50–51 (“Defendant violated 15 U.S.C. § 1692 . . . .”). For those reasons, the Court
will grant defendant’s motion to dismiss Count II, plaintiff’s class claims under the FDCPA.
CONCLUSION
Because the Court finds that plaintiff lacks standing to challenge an assignment to which
he was not party or a foreclosure that has not taken place, and because plaintiff has failed to state
a plausible claim for relief under the FDCPA, the Court will grant defendant’s motion to dismiss
Count I, plaintiff’s individual FDCPA claim. Under those circumstances, the class claim in Count
II will also be dismissed.
A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: November 5, 2015
8 Defendant raised this argument in its motion to dismiss, Def.’s Mem. at 17–18, and plaintiff
failed to oppose it. Thus, the Court may treat it as conceded. See, e.g., Hopkins v. Women’s Div.,
Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well understood in this
Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain
arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to
address as conceded.”), aff’d, 98 Fed. App’x 8 (D.C. Cir. 2004); see also Tax Analysts v. IRS, 117
F.3d 607, 610 (D.C. Cir. 1997) (treating argument as conceded where the plaintiff failed to oppose
argument raised by the defendant).
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