Rene AVILA and Nancy Avila, Plaintiffs, v. CITIMORTGAGE, INC., et al., Defendants.
Civil Action No. 13-1786 (RBW)
United States District Court, District of Columbia.
Signed May 29, 2014
Nancy Avila, Moreno Valley, CA, pro se.
Tessa Laspia Frederick, Miles & Stockbridge, Baltimore, MD, Rita Ting-Hopper, Atlantic Law Group, LLC, David Ludwig, Dunlap Weaver PLLC, Leesburg, VA, for Defendants.
MEMORANDUM OPINION
REGGIE B. WALTON, United States District Judge
Pro se plaintiffs Rene Avila and Nancy Avila bring this civil action against several defendants,1 and appear to be alleging that the attempted foreclosure on their home violates one of the consent decrees issued in United States v. Bank of America, Civ. No. 12-361 (D.D.C., filed Mar. 12, 2012), see Complaint (Compl.) ¶ 1(A)-(E), as well as the Fair Debt Collection Practices Act,
I. BACKGROUND
Although the plaintiffs’ complaint is lengthy and often incoherent, the Court distilled the following facts from it.
The plaintiffs are the owners of the property located at 10055 Sycamore Canyon Road, Moreno Valley, California 92557. Compl., Exhibit (Ex.) 2 (Deed of Trust) at 3. Defendant CitiFinancial Mortgage Company, LLC was the original named beneficiary of the mortgage agreement for the plaintiffs’ home. Id. at 1. CitiFinancial Mortgage Company, LLC irrevocably grant[ed] and convey[ed] to a trustee the power to sell the property in the event the plaintiffs defaulted on their mortgage. Id. at 2, 10-11. The mortgage further specified that CitiFinancial Mortgage Company, LLC at its option, may from time to time appoint a successor trustee to any Trustee appointed under the mortgage. Id. at 11.
On June 25, 2010, defendant CitiMortgage, Inc. became the beneficiary of the plaintiffs’ mortgage as a result of a merger. Compl., Ex. 3 (Assignment of Deed of Trust) at 1. Shortly thereafter, CitiMortgage, Inc. exercised its option to appoint defendant Quality Loan Service Corporation as the new trustee of the plaintiffs’ mortgage. Compl., Ex. 10 (Substitution of Trustee) at 1.
In a notice dated April 24, 2012, Quality Loan Service Corporation informed the plaintiffs that they had failed to pay their mortgage installments of principal and interest which became due on [December 1, 2011], and all subsequent installments of principal and interest through April 24, 2012. Compl., Ex. 13 (Notice of Default and Election to Sell Under Deed of Trust (Notice of Default)) at 2-3. The notice further stated that the plaintiffs’ property would be sold at a foreclosure sale unless they paid the outstanding installments due on their mortgage. Id. at 1. A subsequent notice, dated June 26, 2013 informed the plaintiffs that they were in default under [their] deed of trust and a foreclosure sale was set for July 24, 2013, at 9:00
As noted above, the plaintiffs appear to be alleging in this lawsuit that the attempted foreclosure on their home violates a consent decree issued in United States v. Bank of America, Civ. No. 12-361 (D.D.C., filed Mar. 12, 2012), see Compl. ¶ 1(A)-(E), as well as the Fair Debt Collection Practices Act, the Rosenthal Act,
The defendants have filed motions to dismiss the plaintiffs’ complaint under several provisions of
II. STANDARDS OF REVIEW
A. Consideration of Pro Se Pleadings
The pleadings of pro se parties are to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal citations and quotation marks omitted). However, even though a pro se complaint must be construed liberally, the complaint must still present a claim on which the Court can grant relief. Chandler v. Roche, 215 F. Supp. 2d 166, 168 (D.D.C. 2002) (citing Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C. Cir. 1981)).
B. Rule 12(b)(1) Motion to Dismiss
When a defendant moves for dismissal under
C. Rule 12(b)(3) Motion to Dismiss
In considering a motion to dismiss for lack of proper venue under
D. Rule 12(b)(6) Motion to Dismiss
A
In determining whether a complaint states a claim, the court may consider the facts alleged in the complaint, documents attached thereto or incorporated therein, and matters of which it may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007) (citation omitted). And among the documents subject to judicial notice on a motion to dismiss are public records, Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004), which includes records from other court proceedings, Covad Commc‘ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005).
III. LEGAL ANALYSIS
A. Whether Venue is Proper in the District of Columbia
Several defendants argue that venue is improper in the District of Columbia. See Priority‘s Mem. at 2; Citi Inc.‘s Mem. at 8-10.4 Under
The plaintiffs nonetheless argue that venue is proper in the District of Columbia because of a consent decree entered in United States v. Bank of America, Civ. No. 12-361. See Pls.’ Priority Opp‘n at 3; Pls.’ Combined Opp‘n at 3. But defendant Priority Posting and Publishing, Inc. notes that [t]he [p]laintiffs’ [c]omplaint is a near verbatim copy (save only for changes to party names and addresses) of the [c]omplaint filed by pro se [p]laintiff Vesko Borislavov Ananiev in this Court in December 2012, which also involv[ed] the foreclosure of a California home [and] was dismissed on September 13, 2013 by Judge Howell of this Court for improper venue and lack of standing. Priority‘s Mem. at 2 (citing Ananiev v. Wells Fargo Bank, NA, 968 F. Supp. 2d 123 (D.D.C. 2013)). The Court‘s review of the plaintiffs’ complaint and the complaint in Ananiev confirms that defendant Priority is correct that the two complaints are substantially similar. Compare Compl., with Complaint, Ananiev v. Wells Fargo Bank, NA, Civ. No. 12-1804 (D.D.C., filed Nov. 2, 2012). Accordingly, the Court finds Judge Howell‘s analysis instructive.
In Ananiev, Judge Howell found that the consent decree5 entered in United States v. Bank of America, Civ. No. 12-361, provides that the Servicer‘s obligations under this Consent Judgment shall be enforceable solely in the U.S. District Court for the District of Columbia, but that enforcement actions under the Consent Judgment may only be brought by any Party to this Consent Judgment or the Monitoring Committee. Unrelated Consent Judgment, Ex. E. at E-14-15. The Unrelated Consent Judgment simply does not create a private right of action allowing third parties, such as the plaintiff, to bring claims for alleged violations of the Judgments, let alone unrelated claims in this jurisdiction. Accord Beckett v. Air Line Pilots Ass‘n, 995 F.2d 280, 288 (D.C. Cir. 1993) (Only the Government can seek enforcement of its consent [judgments] . . . therefore, even if the Government intended its consent [judgment] to benefit a third party, that party could not enforce it unless the [judgment] so provided.); Rafferty v. NYNEX Corp., 60 F.3d 844, 849 (D.C. Cir. 1995) (Unless a government consent [judgment] stipulates that it may be enforced by a third party beneficiary, only the parties to the [judgment] can seek enforcement of it.). 968 F. Supp. 2d at 131-32. Here, as in Ananiev, the plaintiff[s] [were] not part[ies] to the consent decree entered in
B. Whether Transfer is Appropriate
The Court‘s venue conclusion does not end the Court‘s inquiry, however. Under
The plaintiffs’ remaining claims include allegations concerning the alleged foreclosure on their home, violations of the Fair Debt Collection Practices Act, the Rosenthal Act, and
1. The Plaintiffs’ Claims Relating to the Foreclosure on Their Home
Defendant Priority asserts that the plaintiffs have no standing to pursue claims relating to the foreclosure on their home because they have not suffered an injury in fact because their house has not yet been sold. Priority‘s Reply at 3.
Because Article III limits the constitutional role of the federal judiciary to resolving cases and controversies, a showing of standing is an essential and unchanging predicate to any exercise of [federal] jurisdiction. Fla. Audubon Soc‘y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (en banc) (citation omitted) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). [T]o satisfy Article III‘s standing requirements, [the] plaintiff[s] must show [that] (1) [they have] suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (quoting Lujan, 504 U.S. at 560-61).
Here, contrary to what is suggested in at least some parts of their complaint, the plaintiffs in their opposition to defendant Priority‘s motion to dismiss state that their home has not been sold and no foreclosure sale was effectuated. Compare, e.g., Compl. ¶ 85 (discussing the alleged invalidity of [t]he foreclosure actions taken by the [d]efendants), with Pls.’ Priority Opp‘n at 2 ([N]o foreclosure sale was effectuated.). The plaintiffs
2. The Plaintiffs’ Fair Debt Collection Practices Act and Rosenthal Act Claims
The defendants argue that the plaintiffs have failed to state a claim under the Fair Debt Collection Practices Act. See Citi Inc.‘s Mem. at 12. The Fair Debt Collection Practices Act . . . imposes civil liability on debt collector[s] for certain prohibited debt collection practices. Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 576 (2010) (citations omitted). Under the Act, [a] ‘debt collector’ is any person in any business ‘the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due asserted to be owed or due another.’ Hardy v. N. Leasing Sys., Inc., 953 F. Supp. 2d 150, 159-60 (D.D.C. 2013) (citing
The plaintiffs’ claims of improper debt collection practices all relate to the purported attempt to foreclose on their home in California. These claims, however, are not cognizable under either the Fair Debt Collection Practices Act or the Rosenthal Act, because none of the defendants are debt collectors as defined by those Acts. The complaint instead names defendants who are companies and banks servicing the plaintiffs’ mortgage, and the documents attached to the plaintiffs’ complaint indicate that the assignment of the debts associated with their mortgage were all made prior to the purported attempt to foreclose on their home. Compare Compl., Exs. 2 (Deed of Trust), 3 (Assignment of Deed of Trust), 10 (Substitution of Trustee), with Compl., Ex. 13 (Notice of Default). Moreover, the complaint contains no allegations that the law firm or individuals named as defendants are involved in any business ‘the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due asserted to be owed or due another.’ Hardy, 953 F. Supp. 2d at 159-60 (citation omitted). The plaintiffs have thus failed to state a claim under either the Fair Debt Collection Practices Act or the Rosenthal Act, and the Court must therefore dismiss both of these claims.
3. The Plaintiffs’ Additional Fraud Claims
To the extent the plaintiffs intend to assert fraud claims independent
4. The Plaintiffs’ Intentional Infliction of Emotional Distress Claims
The defendants argue that the plaintiffs have failed to state a claim for intentional infliction of emotional distress. See Citi Inc.‘s Mem. at 15-16. Neither the plaintiffs nor the defendants discuss whether the law of the District of Columbia or California should apply to the plaintiffs’ tort claims. However, regardless of which law applies, the outcome is the same. In order to establish a prima facie case of intentional infliction of emotional distress under District of Columbia law, a plaintiff must show (1) extreme and outrageous conduct on the part of the defendants, which (2) intentionally or recklessly (3) causes the plaintiff severe emotional distress. Williams v. District of Columbia, 9 A.3d 484, 493-94 (D.C. 2010) (internal quotation marks omitted). As to the first element, the plaintiff must establish that the defendants’ conduct was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Joyner v. Sibley Mem‘l Hosp., 826 A.2d 362, 373 (D.C. 2003) (citation omitted). And under California law, claims of intentional infliction of emotional distress are insufficient as a matter of law where the plaintiffs have not pled any allegations of conduct by the defendants that could be considered ‘outrageous.’ Wilson v. Hynek, 207 Cal. App. 4th 999, 1009 (2012). Indeed, a creditor/debtor situation, whereby the defendants were exercising their rights under the loan agreements and where [t]here are no allegations that in conducting the foreclosure proceedings any of the defendants threatened, insulted, abused, or humiliated the plaintiffs does not rise to the level of intentional infliction of emotional distress. Id.
Here, the plaintiffs’ complaint includes no allegations that any of the defendants, in conducting the [alleged] foreclosure proceedings . . . threatened, insulted, abused, or humiliated the plaintiffs. Id. And foreclosure proceedings, while undoubtedly unpleasant, are not uncommon and cannot because of the process alone be regarded as atrocious [or] utterly intolerable in a civilized community. Joyner, 826 A.2d at 373. The Court thus finds that the plaintiffs have failed to state a cause of action for intentional infliction of emotional distress.
5. The Plaintiffs’ Due Process Claims
This Circuit has held that private citizens, acting in their private capacities, cannot be guilty of violating due process rights, Canadian Transp. Co. v. United States, 663 F.2d 1081, 1093 (D.C. Cir. 1980), and the same is true with respect to the corresponding procedural due process provision of the California Constitution, Kim v. Orellana, 145 Cal. App. 3d 1024, 1027 (1983). Here, each of the defendants named in the plaintiffs’ complaint is a private actor, and the plaintiffs have not alleged that the defendants were not acting in their private capacities. The plaintiffs have thus failed to state a claim under the due process provisions of either the United States or California Constitution.
6. The Plaintiffs’ Claims Under 42 U.S.C. §§ 1983, 1985, and 1986
The defendants argue that the plaintiffs have failed to state a claim under
As to claims under
IV. CONCLUSION
As discussed above, the plaintiffs’ complaint suffers from numerous substantive deficiencies. Additionally, as also discussed above, the plaintiffs’ complaint is substantially similar and in some places identical to the plaintiff‘s complaint in Ananiev. The Court therefore concludes that transferring this case would not be in the interests of justice, and that dismissal is appropriate. See Ananiev, 968 F. Supp. 2d at 132-34 (dismissing pro se plaintiff‘s complaint where plaintiff‘s claims suffered from substantive defects). Accordingly, the Court is compelled to dismiss the plaintiffs’ complaint rather than
SO ORDERED this 29th day of May, 2014.
REGGIE B. WALTON
United States District Judge