Case Information
*1 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 14, 2016 Decided July 7, 2017
No. 15-5186
T HE B ANK OF N EW Y ORK M ELLON T RUST C O . N.A., A S S UCCESSOR IN I NTEREST TO JP M ORGAN C HASE B ANK , N ATIONAL A SSOCIATION , A S S UCCESSOR I N I NTEREST TO B ANK O NE , N ATIONAL A SSOCIATION , A S T RUSTEE FOR ACE
S ECURITIES C ORP H OME E QUITY L OAN T RUST , S ERIES 2003-HS1, A SSET B ACKED P ASS -T HROUGH C ERTIFICATES A PPELLEE v.
P ERRY M. H ENDERSON , FORMERLY KNOWN AS P ERRY M. B RYANT , A PPELLANT U NITED S TATES OF A MERICA , A PPELLEE Appeal from the United States District Court for the District of Columbia (No. 1:14-cv-00747) Paul F. Enzinna , appointed by the court, argued the cause and filed the briefs as amicus curiae in support of appellant.
Perry M. Henderson , pro se, filed the briefs for appellant. *2 S. Mohsin Reza argued the cause and filed the brief for appellee. David Chen entered an appearance.
Before: T ATEL , Circuit Judge , and E DWARDS and G INSBURG , Senior Circuit Judges .
Opinion for the Court filed by Senior Circuit Judge G INSBURG
G INSBURG , Senior Circuit Judge : Pro se defendant Perry Henderson appeals the district court’s order granting plaintiff Bank of New York Mellon’s motion for summary judgment and dismissing Henderson’s counterclaims in this judicial foreclosure action. For the following reasons, we affirm the judgment of the district court.
I. Background
In 2003, Henderson “encumbered [his house in Washington, D.C.] with a Deed of Trust securing a fixed rate balloon note … in the original principal amount of $191,250.00.” Bank of New York Mellon Trust Co. v. Henderson , 107 F. Supp. 3d 41, 43 (D.D.C. 2015). The original lender was SouthStar Funding, LLC. Henderson defaulted on the Note in 2012. . In 2013 SouthStar assigned the Deed of Trust to the Bank. Henderson, however, claims the assignment is invalid.
The Bank initially sought to foreclose on the property in the Superior Court of the District of Columbia, but the case was removed to federal court by the Internal Revenue Service. The district court granted the Bank’s motion for summary judgment on the ground that it was entitled to judicial foreclosure. The court also dismissed Henderson’s counterclaims for (1) “declaratory and injunctive relief based on plaintiff's failure to *3 follow the proper procedures to foreclose a deed of trust in the District of Columbia,” (2) “violations of the Fair Debt Collection Practices Act,” (3) quiet title, (4) “violations of the Fair Credit Reporting Act,” and (5) civil conspiracy. . at 43– 44. Henderson appeals the district court’s grant of summary judgment to the Bank and the dismissal of his counterclaims. This court appointed Paul F. Enzinna as amicus curiae to present arguments in support of Henderson’s position and we are grateful for his able, though unavailing, efforts.
II. Analysis
This case presents two questions: (1) whether the grant of summary judgment was proper given the dispute about the validity of the assignment to the Bank and (2) whether Henderson’s counterclaims were properly dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). We affirm both the district court’s grant of summary judgment and its dismissal of Henderson’s counterclaims.
A. Summary Judgment
We review a grant of summary judgment de novo.
Aref v.
Lynch
, 833 F.3d 242, 250 (D.C. Cir. 2016). Summary
judgment is appropriate when, “viewing the evidence and the
inferences which may be drawn therefrom in the light most
favorable to the adverse party,”
Pub. Citizen v. U.S. Dist. Court
for D.C.
,
Henderson does not deny that he is in default on the Note,
nor does he contest the validity of the Note or the Deed. The
Bank attached a copy of the Note as Exhibit B of its verified
complaint and further asserted that it is the rightful owner of
*4
the Note and the successor in interest to the original trustee
listed in the allonge to the Note. Because Henderson provided
no evidence to indicate the Bank is not the rightful holder of
the Note, there is no genuine dispute of material fact that the
Bank holds the Note.
See Neal v. Kelly
, 963 F.2d 453, 457
(D.C. Cir. 1992) (verified complaint may be treated as the
“functional equivalent of an affidavit” for purposes of
summary judgment (internal quotation marks omitted)).
Because D.C. law allows the holder of a note to enforce the
deed of trust by judicial foreclosure,
see Szego v. Kingsley
Anyanwutaku
,
The district court dismissed Henderson’s counterclaims
under Rule 12(b)(6), which decision we review de novo.
Stewart v. Nat’l Educ. Ass’n
, 471 F.3d 169, 173 (D.C. Cir.
2006). “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.”
Id
. Here,
however, the district court relied upon facts outside the
pleadings (and not within the scope of judicial notice). For
example, in dismissing Henderson’s claim for injunctive and
declaratory relief, the district court relied upon Exhibit E of the
Bank’s complaint as disproving Henderson’s allegation that the
Bank failed to provide notice of foreclosure counseling. 107
F. Supp 3d at 46. Similarly, in dismissing Henderson’s claim
to quiet title, the district court relied upon Exhibit C of the
Bank’s complaint (the Deed of Trust). . at 47. Although the
district court did not characterize the motion to dismiss as a
motion for summary judgment under Rule 56, F ED R. C IV . P.
12(d), it effectively treated the motion as such,
see Ctr. for Auto
Safety v. Nat’l Highway Traffic Safety Admin.,
1. Federal and District of Columbia foreclosure procedures
Henderson counterclaimed for declaratory and injunctive relief, arguing the Bank did not fulfill the requirements of federal and D.C. law to foreclose on a house. 107 F. Supp 3d at 46.
He argues the Bank was required by the National Housing
Act, 12 U.S.C. § 1701x(c)(5), to provide him notice of the
“availability of homeownership counseling” and, under D.C.
Code §§ 42-815 & 42-815.02, to provide him notice of his right
to “foreclosure mediation.” The Bank’s law firm did, however,
send Henderson a letter dated May 17, 2013 advising him of
his default and of a telephone number to call for
homeownership counseling. 107 F. Supp 3d at 46. Henderson
does not explain why this was insufficient notice. Insofar as
Henderson maintains that D.C. law requires mediation prior to
judicial foreclosure, he is, as the district court noted, clearly
mistaken.
Id
. (citing
Rogers v. Advance Bank
,
Like the district court, we do not address Henderson’s
threadbare allegation that the Bank violated certain “Pooling
and Servicing” and “trust” agreements. . at 46 n.7. “A
pro
se
complaint … must be held to less stringent standards than
formal pleadings drafted by lawyers. But even a
pro se
complainant must plead factual matter that permits the court to
infer more than the mere possibility of misconduct.”
Atherton
*6
v. D.C. Office of Mayor
,
2. Fair Debt Collection Practices Act
Henderson alleges the Bank violated the FDCPA, 15 U.S.C. § 1692 et seq. , in several ways. That statute, however, applies only to a “debt collector” as it defines the term. The district court held the Bank was a not a “debt collector,” 107 F. Supp. 3d at 47, and we agree.
The FDCPA creates two “mutually exclusive” categories,
debt collectors and creditors, but only debt collectors are
regulated by the statute.
McKinney v. Cadleway Properties,
Inc.
,
who uses any instrumentality of interstate commerce or the mails in any business [1] the principal purpose of which is the collection of any debts, or [2] who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.
15 U.S.C. § 1692a(6). The Bank is neither type of debt collector. There is no evidence to indicate the Bank’s “principal” business is debt collection. Nor is the debt the Bank is seeking to collect “due another”; on the contrary, the debt is due to the Bank as the current holder of the Note and Deed of Trust. That the debt was already in default when the Bank purchased it did not make the Bank a debt collector. See Henson v. Santander Consumer USA Inc. , No. 16-349, slip op. at 7–8 (U.S. June 12, 2017) (an entity collecting a debt for its own account is not a “debt collector” under the FDCPA even if it purchased the debt when it was in default). Therefore, Henderson’s counterclaim under the FDCPA must fail. *7 3. Quiet Title
Henderson seeks to quiet title and asserts in his
counterclaim that the Bank has no right to the property, of
which he is the owner in fee simple. As the Bank and district
court pointed out, however, this assertion is contradicted by the
Deed of Trust signed by Henderson.
The Bank has carried its burden of showing there is no genuine dispute of material fact with respect to this counterclaim. Therefore, summary judgment for the Bank is proper.
4. Fair Credit Reporting Act
The district court dismissed Henderson’s counterclaim
under the FCRA on the ground that “there is no private cause
of action for the alleged violations.”
5. Civil Conspiracy
The district court also dismissed Henderson’s civil
conspiracy claim for failure to state “with particularity the
circumstances constituting fraud,” as required by Federal Rule
of Civil Procedure 9(b), and to provide evidence “to support an
inference of an agreement among the alleged conspirators,” to
wit, the Bank, “unknown new investors,” and the Bank’s
counsel.
III. Conclusion
For the reasons stated above, the judgment of the district court is
Affirmed .