Koker v. Aurora Loan Servicing, LLC
2013 U.S. Dist. LEXIS 497
D.C. Cir.2013Background
- Plaintiff Lisa Koker sues Aurora Loan Servicing, MERS, James E. Clarke, and Atlantic Law Group for wrongful foreclosure and unlawful trade practices under DC and federal law.
- Property at 4754 6th Place NE, Washington, DC; purchase in 2006, refinanced in 2007; Deed of Trust recorded April 4, 2007.
- Lender in the Deed of Trust was American Brokers Conduit; Aurora later claimed to be the noteholder; MERS acted as nominee and beneficiary; Clarke served as Substitute Trustee and is a member of Atlantic Law.
- Plaintiff entered three forbearance agreements with Aurora (June 2008–Feb 2009) and continued payments, but foreclosure proceedings began February 13, 2009.
- Plaintiff filed for Chapter 13 bankruptcy August 17, 2009; plan confirmed November 11, 2009; stay modified; stay lifted; foreclosure sale occurred September 21, 2010.
- Superior Court action for possession filed January 4, 2011; protective order requiring monthly payments; plaintiff sanctioned for nonpayment; Aurora’s summary judgment granted March 6, 2012; Writ of Restitution issued March 13, 2012; Plaintiff filed this federal action March 21, 2012 and removal to federal court June 29, 2012; court granted motions to dismiss all counts under Fed. R. Civ. P. 12(b)(6).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Count I is time-barred under DC CPA Act | Koker argues claim should survive due to ongoing contact with Aurora; discovery rule potentially applicable. | Defendants contend accrual occurred at foreclosure initiation (Feb 13, 2009); discovery rule and equitable estoppel do not save the claim. | Count I dismissed as time-barred. |
| Whether Count II states a wrongful-foreclosure claim against MERS and Trustees | Counts allege defects in Notice and authority of non-Aurora parties. | Foreclosure statute §42-815 imposes duties on holder of note or agent; Aurora initiated proceedings; MERS/Trustees lack independent liability. | Count II dismissed as to MERS and Trustee Defendants; only Aurora may be liable. |
| Whether Count III creates a private right of action under § 47-1431 | Plaintiff seeks damages for failure to record deed; implied private right of action. | § 47-1431(a) does not expressly authorize private damages; need to show implied right. | Count III dismissed for lack of implied private right of action. |
| Whether Count IX RESPA claim survives | Plaintiff failed to allege transferor/transferee servicer or damages; arguments conceded. | Count IX dismissed. | |
| Whether Counts X, XI, XII, XIII survive based on preclusion and lack of pleading | Superior Court judgment precludes declaratory/quiet-title and injunction; unjust enrichment fails with express contract; fiduciary-duty claims insufficient. | Counts X, XI, XII, XIII dismissed. |
Key Cases Cited
- Murray v. Wells Fargo Home Mortg., 953 A.2d 308, 953 A.2d 308 (D.C.2008) (accrual and statute of limitations for DC CPA claims; foreclosure timing drives accrual)
- Firestone v. Firestone, 76 F.3d 1205, 76 F.3d 1205 (D.C.Cir.1996) (limitations dismissal when time-barred on face of complaint)
- Jenson v. Huerta, 828 F. Supp. 2d 174, 828 F. Supp. 2d 174 (D.D.C.2011) (res judicata/limitations defenses on motion to dismiss)
- Patton v. Klein, 746 A.2d 866, 746 A.2d 866 (D.C.1999) (scope of claim preclusion; same transaction/defense can be raised)
- Henderson v. Snider Bros., Inc., 439 A.2d 481, 439 A.2d 481 (D.C.1981) (preclusion principles—grounds to bar later actions)