Appellants James L. Scales and April J. Ward, who are married, purchased a residence together. After they defaulted on two loans, appellee Wells Fargo Bank, N.A. foreclosed on the residence. Wells Fargo also filed an action for possession of the residence. Mr. Scales and Ms. Ward filed a separate action challenging the foreclosure in Superior Court, alleging numerous claims against Wells Fargo and appellee Rosenberg & Associates, LLC (“R & A”), a law firm that participated in the foreclosure. The trial court denied relief to Mr. Scales and Ms. Ward and entered a non-redeemable judgment of possession to Wells Fargo. We affirm.
I.
Except as noted, the following facts are undisputed. In April 2004, Mr. Scales and Ms. Ward purchased as tenants by the entirety a property located at 400 Orange Street, S.E., Washington, D.C. By 2006, they had two outstanding loans on the property: a $216,000 mortgage relating to the purchase of the property and an equity line of credit (“ELOC”) with a limit of $27,000. Mr. Scales and Ms. Ward obtained both loans from World Savings Bank, F.S.B. — a predecessor in interest to Wells Fargo.
Mr. Scales and Ms. Ward subsequently moved to 5907 Herring Court, Waldorf, Maryland. Mr. Scales and Ms. Ward notified Wells Fargo of their new address with respect to the mortgage, but the parties dispute whether Mr. Scales and Ms. Ward properly notified Wells Fargo of their new address with respect to the ELOC. From 2006 to 2012, Mr. Scales and Ms. Ward rented the Orange Street property to a tenant who paid them approximately $1700 per month.
In 2009, Mr. Scales and Ms. Ward defaulted on both loans. As a result, Wells Fargo took steps to foreclose on the property, relying solely on the default with respect to the ELOC. Wells Fargo hired R & A to initiate foreclosure proceedings. On December 8, 2009, R & A sent a notice of intent to foreclose to Mr. Scales and Ms. Ward at the Orange Street address. The 2009 notice stated that the foreclosure sale would occur on January 12, 2010.
In January 2010, Mr. Scales filed a complaint in Superior Court and moved for a temporary restraining order (“TRO”) and preliminary injunction to prevent foreclosure, alleging that Wells Fargo was not the proper holder of the ELOC note. Mr. Scales’s TRO motion listed Orange Street as Mr. Scales’s home address.
The trial court granted a TRO and can-celled the foreclosure sale, based on Mr. Scales’s promise to cure the default within two days. The trial court gave Mr. Scales’s case priority because the court understood from Mr. Scales that the foreclosure action involved Mr. Scales’s home.
Mr. Scales failed to cure the default. As a result, the trial court granted Wells Fargo’s motion to dismiss the TRO action and re-scheduled the foreclosure sale for March 23, 2010. R & A again sent notice of intent to foreclose to the Orange Street address.
On March'23, 2010, Wells Fargo purchased the property at the foreclosure sale. On March 30, 2010, Wells Fargo served a thirty-day notice to quit on Mr. Scales and Ms. Ward at the Orange Street address. The deed of sale reflecting Wells
In May 2010, Wells Fargo filed a complaint against Mr. Scales and Ms. Ward in the Landlord-Tenant Branch of the Superior Court for possession of the Orange Street property. In July 2010, Mr. Scales and Ms. Ward filed suit against R & A and Wells Fargo in the Civil Division of the Superior Court, alleging among other things wrongful foreclosure and breach of contract.
The trial court subsequently determined that Mr. Scales and Ms. Ward had effectively asserted a plea-of-title defense in the possession action, by challenging the foreclosure in the wrongful-foreclosure action. Under the Landlord & Tenant Rules, a defendant who asserts a plea-of-title defense to an action for possession must do so in writing and must make appropriate arrangements for an “undertaking,” Super. Ct. L & T R. 5(c) (2014), which “is a form of bond used ... to assure compensation of the plaintiff not only for lost rent during the period of litigation while the defendant occupies the premises but also for the cloud on the title and related damages and cost.” Lindsey v. Prillman,
In April 2012, the trial court entered a non-redeemable judgment for possession in favor of Wells Fargo in the possession action, holding among other things that Mr. Scales and Ms. Ward did not have standing to challenge the possession action because they had not filed a plea of title and thus were “stranger[s] to the [Orange Street] property[.]”
During the pendency of the possession action, the trial court entered a protective order requiring Mr. Scales and Ms. Ward to pay $1700 per month into the court’s registry. The trial court subsequently reduced the payments to $850 per month. The trial court eventually vacated the protective order, concluding that such an order was more appropriate in a suit based on possession for non-payment of rent. By that time, Mr. Scales and Ms. Ward had paid $7015 into the court’s registry. The trial court subsequently disbursed the funds to Wells Fargo.
In the wrongful-foreclosure action, the trial court first dismissed a number of the claims as barred by the statute of limitations or for failure to state a claim upon
II.
Mr. Scales and Ms. Ward raise three challenges to the trial court’s handling of the possession action. We see no basis for reversal.
A.
First, Mr. Scales and Ms. Ward argue that the trial court should have dismissed them as defendants in the possession action.
The defendants in an action for possession must be “detain[ing] possession of real property without right, or after [their] right to possession has ceased.... ” D.C.Code § 16-1501 (2012 Repl.). This court does not appear to have squarely addressed the meaning of the phrase “detains possession” under § 16-1501. It is clear, however, that an action for possession may be brought against a defendant who is not currently occupying the property at issue. See D.C.Code § 16-1502 (2012 Repl.) (where defendant in action for possession cannot be found in District of Columbia, summons may be served on tenant or on person over age of sixteen residing on or in possession of premises, and “if no one is in actual possession” summons may be served by posting on property).
We take guidance from the law applicable to ejectment actions, because the action for possession was created to provide for “summary relief in those cases where ... the action of ejectment would lie.” Pernell v. Southall Realty,
B.
Second, Mr. Scales and Ms. Ward contend that the possession case should have been dismissed because Wells Fargo did not have legal title when it served the notice to quit and filed the complaint. We conclude that Wells Fargo had equitable title at the time it served the notice to quit and filed its complaint, and that such title sufficed to permit Wells Fargo to take those steps.
Wells Fargo purchased the property at a foreclosure sale, and the memorandum of purchase is dated March 23, 2010. The parties do not dispute that the memorandum of purchase is a valid, enforceable contract that affects real property. Under the doctrine of equitable conversion, Wells Fargo therefore obtained equitable title to the property on March 23, 2010. See generally Lindsey,
In the District of Columbia, equitable title is sufficient to maintain an action for possession. See Fiske v. Bigelow,
C.
Finally, Mr. Scales and Ms. Ward allege that the funds they deposited in the court’s registry pursuant to the protective order should have been returned to them rather than released, because the trial court should not have imposed a protective order in the first instance. We review the entry of the protective order for abuse of discretion. Lindsey,
Courts have broad powers to fashion equitable remedies. See Owen v. Board of Dirs. of Wash. City Orphan Asylum,
Although courts typically enter protective orders in suits for non-payment of rent where the parties have a contractual landlord-tenant relationship, we have never held that a trial court’s authority to enter a protective order is limited to that context. See Crockett v. Deutsche Bank Nat’l Trust,
We find no abuse of discretion with respect to the trial court’s entry of the protective order in this case. Mr. Scales and Ms. Ward were acting as landlords, collecting approximately $1700 in rent per month from a tenant who occupied the property, but had not made payments since 2009 towards either of the two loans relating to the property. Moreover, we agree with the trial court that Mr. Scales and Ms. Ward were in substance asserting a plea of title by suing in the wrongful-foreclosure action to regain ownership of the property. The trial court therefore could have required Mr. Scales and Ms. Ward to make
III.
Mr. Scales and Ms. Ward raised fourteen claims against R & A and Wells Fargo in the amended complaint in the wrongful-foreclosure action. The trial court dismissed some claims as time-barred and some claims for failure to state a claim. The trial court granted summary judgment in favor of R & A and Wells Fargo on the remaining claims. We affirm.
A.
The trial court dismissed as time-barred the claims against Wells Fargo alleging fraudulent inducement (Count 1), fraud (Count 2), and consumer-protection violations (Count 9). We uphold that ruling.
The trial court concluded that the claims alleged in these counts accrued on June 26, 2006, the date on which the loans were made. Mr. Scales and Ms. Ward do not contest that ruling on appeal. The trial court further concluded that these claims “substantively state TILA [Truth-In-Lending Act] claimsf,]” and Mr. Seales and Ms. Ward also do not contest that ruling on appeal.” The statute of limitations for TILA claims runs “one year from the date of the occurrence of the violation.” 15 U.S.C. § 1640(e) (2012); see, e.g., Logan v. LaSalle Bank Nat’l Ass’n,
On appeal, however, Mr. Scales and Ms. Ward argue that the filing of a class-action complaint in August 2007 in the Northern District of California tolled the statute of limitations. Mr. Scales’s and Ms. Ward’s TILA claims, however, were time-barred as of June 2007. Thus, even if the August 2007 class action would otherwise have tolled the statute of limitations, the limitations period had already run, because class-action tolling “does not resurrect expired claims[.]” Beavers v. Metropolitan Life Ins. Co.,
B.
The trial court also dismissed as untimely the disparate-impact claims against Wells Fargo under the D.C. Human Rights Act (Count 10), federal Fair Housing Act (Count 11), and federal Equal Credit Opportunity Act (Count 12). We affirm that ruling.
Mr. Scales and Ms. Ward argue, however, that the limitations period was tolled under what they refer to as the “critical mass doctrine.” Under that doctrine, which this court has not previously had occasion to consider, some courts have tolled the statute of limitations for discrimination claims if the alleged discrimination “could only manifest itself after a critical mass of similarly situated people experienced it, so as to bring an overarching pattern to life.” Ramirez v. GreenPoint Mortg. Funding, Inc.,
More generally, the critical-mass doctrine has been treated as an aspect of the continuing-violation doctrine. See, e.g., Ramirez,
In sum, Mr. Scales and Ms. Ward’s con-elusory references to the critical-mass doctrine were not sufficient to defeat Wells Fargo’s motion to dismiss. Cf., e.g., Lingad v. Indymac Fed. Bank, 682 F.Supp.2d
C.
We affirm the order granting summary judgment for Wells Fargo and R & A on the wrongful-foreclosure claim and breach-of-contract claims (Counts 3 and 6). We review de novo the trial court’s grant of summary judgment. See, e.g., Trustee 1245 13th St., NW No. 608 Trust v. Anderson,
Mr. Scales and Ms. Ward allege that the foreclosure sale was illegal because Wells Fargo and R & A did not mail the 2010 notice of intent to foreclose to Mr. Scales’s and Ms. Ward’s correct “last known address,” as required by D.C.Code § 42-815(b)(1)(A) (2012 RepL). R & A sent the notice to the Orange Street address, but Mr. Scales and Ms. Ward contend that the notice should have been sent to the residence in Maryland where they claim that they resided at the time of the foreclosure. They further allege that sending the notice to the Orange Street address was a breach of Wells Fargo’s obligations under the deed of trust.
We agree with the trial court that Mr. Scales is judicially estopped from challenging the service of notice at the Orange Street property, because Mr. Scales represented during the TRO proceeding that the Orange Street property was his home.
Under the doctrine of judicial estoppel, “[i]f a party has taken a position before a court of law, ... that party ... [may be barred] from contradicting his earlier position [in a later proceeding].” Brown v. M St. Five, LLC,
First, [whether] a party’s later position ... [is] clearly inconsistent with its earlier position. Second, ... whether the party has succeeded in persuading a court to accept the party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled.... [T]hird[,] ... whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.
Mason v. United States,
In this case, these factors weigh in favor of finding that Mr. Scales is judicially es-topped from denying that the Orange Street property was his home. First, Mr. Scales’s current claim that the Maryland property was his home in February 2010 directly conflicts with Mr. Scales’s testimony during the January 2010 TRO proceeding, where Mr. Scales testified under oath that the Orange Street property was his home.
Furthermore, we agree with the trial court that Mr. Scales’s testimony should judicially estop Ms. Ward even though she did not give that testimony and was not a party to the TRO proceedings. Mr. Scales and Ms. Ward owned the Orange Street property as tenants by the entireties, and under the circumstances Ms. Ward was in privity with Mr. Scales with respect to the property. David v. Nemerofsky,
We conclude that it was appropriate in the circumstances of this ease for the trial court to treat Ms. Ward as judicially es-
D.
Finally, we affirm the trial court’s dismissal of the disparate-impact claims against R & A under the Fair Housing Act (Count 13) and D.C. Human Rights Act (Count 14) for failure to state a claim.
To state a disparate-impact claim, the plaintiffs must “identify a specific policy or practice which the defendant has used to discriminate.... ” Garcia v. Johanns, 370 U.S.App. D.C. 280, 288,
Mr. Scales and Ms. Ward failed to state a disparate-impact claim against R & A under either the Fair Housing Act or the D.C. Human Rights Act. The complaint makes a number of specific allegations about R & A’s conduct: (1) R & A told Mr. Scales that attempting to cure the ELOC would be “futile” because R & A would “find some other way to foreclose on the [Orange Street] property”; (2) R & A lacked policies to ensure that foreclosure notices reach property owners; (3) R & A mismanaged “essential documents”; (4) R & A sent foreclosure notices to wrong addresses; (5) R & A failed to read promissory notes before foreclosure; and (6) R & A relied on “unsupervised” non-lawyers. The complaint also alleges in conclusory fashion that “the combined effect of such inexcusable failings has a disparate impact on African-Americans in the District of Columbia.”
These allegations are not sufficient to state a disparate-impact claim. Many of the allegations rest on the premise that R & A sent the foreclosure notice to an incorrect address, but we have already held that Mr. Scales and Ms. Ward are judicially estopped from claiming that they did not reside at the Orange Street property for purposes of the wrongful-foreclosure case. The complaint does not identify any specific support for a conclusion that any of the other specific acts alleged had a disparate impact on African Americans.
In sum, we affirm the trial court’s dismissal of the disparate-impact claims against R & A.
For the foregoing reasons, the judgment of the Superior Court is
Affirmed.
Notes
. We hereinafter use "Wells Fargo" to also refer to Wells Fargo’s predecessors in interest.
. As amended, the complaint alleged claims against Wells Fargo for fraudulent inducement (Count 1); fraud (Count 2); breach of contract (Count 3); intentional violation of the duty of good faith (Count 5); wrongful foreclosure (Count 6); abuse of process (Count 7); tortious interference with a contract (Count 8); violation of the D.C. Consumer Protection Act, D.C.Code § 28-3901 et seq. (2012 Repl.) (Count 9); violation of the D.C. Human Rights Act, D.C.Code § 2-1401 et seq. (2012 Repl.) (Count 10); violation of the federal Fair Housing Act, 42 U.S.C. § 3601 et seq. (2006) (Count 11); and violation of the federal Equal Credit Opportunity Act, 15 U.S.C. § 1691 et seq. (2006) (Count 12). The complaint alleged claims against R & A for breach of contract (Count 3); gross negligence (Count 4); intentional violation of the duty of good faith (Count 5); wrongful foreclosure (Count 6); abuse of process (Count 7); tortious interference with a contract (Count 8); and violations of the federal Fair Housing Act and the D.C. Human Rights Act (Counts 13 and 14).
. Mr. Scales and Ms. Ward were named defendants in the action that resulted in the non-redeemable judgment for possession, and the writ of restitution names Mr. Scales and Ms. Ward as defendants.
. The trial court denied the motion to dismiss on the ground that Mr. Scales and Ms. Ward lacked standing, because they had failed to enter a plea of title and therefore were "stranger[s]” to the Orange Street property. We affirm on the alternative ground that Mr. Scales and Ms. Ward were proper defendants in the possession case. See, e.g., Obelisk Corp. v. Riggs Nat’l Bank,
. In arguing that Wells Fargo did not obtain equitable title, Mr. Scales and Ms. Ward rely solely on HSBC Bank USA, N.A. v. Mendoza,
.Mr. Scales and Ms. Ward contend that Fiske establishes that legal title rather than equitable title is required to maintain an action for possession. The passage they quote from
. In the trial court, Mr. Scales and Ms. Ward moved to strike the affirmative defenses as insufficiently pleaded. The trial court denied their motion, and Mr. Scales and Ms. Ward challenge that decision on appeal. We see no basis for relief, because Mr. Scales and Ms. Ward had adequate notice of the affirmative defenses and a full opportunity to respond before the trial court ruled on the merits. Cf. Word v. Ham,
. When Mr. Scales and Ms. Ward obtained the mortgages at issue in 2006, the applicable statute of limitations for the Equal Credit Opportunity Act was two years. In 2010, after the statute of limitations had run with respect to the Equal Credit Opportunity Act claim, Congress amended the statute to provide for a five-year limitations period. 15 U.S.C. § 1691e (f) (2012). Mr. Scales and Ms. Ward have not argued that the 2010 amendment revived their Equal Credit Opportunity Act claims.
. The two cases upon which Mr. Scales and Ms. Ward principally rely are not inconsistent with our holding in this case. See Ramirez,
. Mr. Scales contends that the trial court incorrectly applied the doctrine of judicial estoppel, because Mr. Scales’s statement during the TRO proceeding that the Orange Street property was his home was not a "position” that Judge Mencher "adopted.” We disagree. During the TRO proceeding, Mr. Scales answered "[y]es” when asked by Judge Mencher whether the Orange Street property was his home. Judge Mencher further noted: ”[t]his is your home. It’s important.”