Bank of New York Mellon Trust Co. N.A. v. Henderson
2017 U.S. App. LEXIS 12203
| D.C. Cir. | 2017Background
- In 2003 Henderson executed a deed of trust and note secured by his D.C. home; he defaulted in 2012.
- SouthStar Funding, LLC was the original lender; in 2013 SouthStar assigned the deed of trust to Bank of New York Mellon (the Bank), which sought judicial foreclosure.
- Henderson challenged the assignment's validity and asserted multiple counterclaims (failure to provide required foreclosure notices/counseling, FDCPA and FCRA violations, quiet title, civil conspiracy).
- The district court granted the Bank summary judgment for judicial foreclosure, concluding the Bank holds the note and may enforce the deed of trust under D.C. law, and dismissed Henderson’s counterclaims.
- Henderson appealed; the D.C. Circuit appointed amicus to present arguments in support of Henderson but affirmed the district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment for judicial foreclosure was proper | Bank: it holds the Note and is successor in interest and thus can judicially foreclose | Henderson: assignment to Bank is invalid, creating a genuine dispute of material fact | Held for Bank — Henderson conceded default and presented no evidence rebutting Bank’s possession/ownership of the Note; under D.C. law holder may judicially foreclose |
| Whether Bank violated federal and D.C. foreclosure/notice requirements | Bank: provided notice of default and a phone number for homeownership counseling; D.C. law does not mandate pre-foreclosure mediation | Henderson: Bank failed to provide statutorily required counseling notice and mediation | Held for Bank — evidence of notice was adequate; mediation is not required prior to judicial foreclosure in D.C. |
| Whether Bank is a "debt collector" under the FDCPA | Bank: is the creditor/holder of the debt, not a debt collector | Henderson: Bank acted as a debt collector and violated FDCPA | Held for Bank — Bank is creditor/holder, not a debt collector; FDCPA inapplicable (consistent with Henson) |
| Validity of Henderson’s other counterclaims (quiet title, FCRA, civil conspiracy) | Bank: Deed of Trust and Note contradict Henderson’s quiet title claim; other claims fail as pleaded or forfeited | Henderson: asserts defects, fraud, and reporting violations but pleads few supporting facts | Held for Bank — quiet title fails because deed encumbers property; FCRA claim forfeited on appeal; civil conspiracy dismissed for lack of particularized fraud/allegations |
Key Cases Cited
- Aref v. Lynch, 833 F.3d 242 (D.C. Cir. 2016) (summary judgment standard)
- Pub. Citizen v. U.S. Dist. Court for D.C., 486 F.3d 1342 (D.C. Cir. 2007) (view evidence in light most favorable to nonmovant)
- Neal v. Kelly, 963 F.2d 453 (D.C. Cir. 1992) (verified complaint may serve as affidavit for summary judgment purposes)
- Szego v. Kingsley Anyanwutaku, 651 A.2d 315 (D.C. 1994) (holder of note may enforce deed of trust by judicial foreclosure)
- Center for Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798 (D.C. Cir. 2006) (treatment of 12(b)(6) motions with matters outside pleadings)
- Wiley v. Glassman, 511 F.3d 151 (D.C. Cir. 2007) (when both sides had reasonable opportunity to present evidence, motion may be treated as summary judgment)
- Atherton v. D.C. Office of Mayor, 567 F.3d 672 (D.C. Cir. 2009) (pro se pleadings held to less stringent standards but must plead factual matter)
- McKinney v. Cadleway Properties, Inc., 548 F.3d 496 (7th Cir. 2008) (FDCPA debt collector/creditor distinction)
- Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718 (2017) (entity collecting for its own account is not a "debt collector" under FDCPA)
- Rogers v. Advance Bank, 111 A.3d 25 (D.C. 2015) (foreclosure mediation not required prior to judicial foreclosure in D.C.)
- Fed. Election Comm’n v. Craig for U.S. Senate, 816 F.3d 829 (D.C. Cir. 2016) (issues not raised on appeal are forfeited)