Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________
)
NADIA YOUKELSONE, )
)
Plaintiff, )
) v. ) Civil Action No. 09-1278 (RMC) )
FEDERAL DEPOSIT INSURANCE )
CORPORATION, as Receiver of )
Washington Mutual Bank, )
)
Defendant. )
_________________________________ )
OPINION
Nаdia Youkelsone once owned a two-family residence in Brooklyn, New York. After she failed to make mortgage payments, the mortgage holder, Federal National Mortgage Association, initiated foreclosure proceedings in September 2001. Years of litigation followed, with Ms. Youkelsone, an attorney, representing herself pro se . In this particular suit, Ms. Youkelsone complains that Washington Mutual Bank, which held the mortgage before Fannie Mae and continued to service it after its assignment to Fannie Mae, is liable to her for breach of contract, various torts, abuse of process, and other legal wrongs. The Federal Deposit Insurance Corporation stands in the shoes of Washington Mutual Bank as its Receiver since the Bank’s collapse in 2008. FDIC-Receiver moves to dismiss the Second Amended Complaint.
The D.C. Circuit Court of Appеals has clarified that Ms. Youkelsone has standing
to sue WaMu.
See Youkelsone v. FDIC
,
I. FACTS
Ms. Youkelsone owned a two-family dwelling on East 18th Street, Brooklyn, New York, when this saga began. Second Am. Compl. [Dkt. 40] (Compl.) ¶ 16. Ms. Youkelsone had purchased the property with a Note and Mortgage from GFI Mortgage on March 3, 1997. Id. ¶ 17; see also id., Ex. 1 (Mortgage), id., Ex. 2 (Note). That same day, GFI Mortgage assigned the Note and Mortgage to Fleet Mortgage Corporation. Id. ¶ 18. Fleet serviced and/or owned the Note and Mortgage until Fleet merged into Washington Mutual Home Loans (WaMu), a subsidiary of Washington Mutual, Inc. (WMI). Id. ¶¶ 20–21. Within months, on August 25, 2001, WaMu in turn assigned the Note and Mortgage to Fannie Mae. [1] Id. ¶ 23. Fannie Mae recorded its interest in the New York City Registry’s office on November 15, 2001, aftеr the relevant events began to unfold. Id. ¶ 26. Apparently no notice of the assignment was sent at that time to Ms. Youkelsone, and WaMu continued to service the Note and Mortgage after the assignment to Fannie Mae, a cause for some confusion. Id. ¶¶ 24, 28–29.
Fannie Mae, taking the position that Ms. Youkelsone was in default on the Note, initiated a foreclosure action in October 2001 in the Supreme Court of the State of New York in Kings County, Case No. 36834/01 (Foreclosure Case). ¶¶ 25–28; Fed. Nat’l Mortg. Ass’n v. Youkelsone , No. 36834/01 (N.Y. Sup. Ct. filed Oct. 4, 2001). [2] Although Fannie Mae filed the Foreclosure Case, Ms. Youkelsone alleges that WaMu “prepared, executed and filed debt verifications” and acted together with Fannie Mae in “wrongful actions . . . including but not limited to foreclosure action, bankruptcy proceeding, contract of sale, subsequent actions in *3 satisfaction of mortgage.” Compl. ¶¶ 31–32. She complains that Fannie Mae and WaMu “aided and abetted each other in commission of tort[i]ous actions against [her] and in facilitation of the scheme designed to defraud and to misappropriate [her] property and [her] property right.” Id. ¶ 34.
Fannie Mae’s efforts to foreclose were contested long and loudly by Ms.
Youkelsone, beginning immediately in 2001.
See Fed. Nat’l Mortg. Ass’n v. Youkelsone
(
Foreclosure Case Supreme Court Sanctions Opinion
), No. 36834/01, at *5 (N.Y. Sup. Ct. April
4, 2003) (denying Ms. Youkelsone’s motion for sanctions; granting Fannie Mae’s motion for
sanctions against Ms. Youkelsone), attached as Def. Mem. Supp. Mot. Dismiss (Def. Mem.), Ex.
1 [Dkt. 41-2]. Shortly after Fannie Mae filed the Foreclosure Case, Ms. Youkelsone filed a
separate suit against Fleet Mortgage Corporation in the Supreme Court of New York in Kings
County (State Court Case).
Youkelsone v. Fleet Mortg. Corp.
, No. 50145/2001 (N.Y. Sup.
Ct. filed Dec. 24, 2001). The Supreme Court denied Ms. Youkelsone’s motion to dismiss the
complaint in the Foreclosure Case, and the Appellate Division affirmed.
See Fed. Nat’l Mortg.
Ass’n v. Youkelsone
(
Foreclosure Case Appellate Division Opinion
),
Ms. Youkelsone contends that her equitable interest in the property during the Foreclosure Case was over $600,000, which “far exceeded” the Note, worth approximately $150,000 in principal. Compl. ¶¶ 36, 79. Throughout the foreclosure proceedings, Ms. Youkelsone attempted to sell her property privately, but WaMu is alleged to have “continuously rejected” and/or “ignored” her pleas. ¶¶ 37–38. She alleges that she was forced to “file a *4 Chapter 13 bankruptcy” as a direct result of “the defendant’s wrongdoings.” Id. ¶ 39. The records of the Bankruptcy Court for the Eastern District of New York reveal that Ms. Youkelsone filed a voluntary Chapter 13 petition on June 19, 2003, and, on WaMu’s motion, the Bankruptcy Court dismissed the case pursuant to 11 U.S.C. § 1307(c) on November 24, 2003. In re Nadia Youkelsone , Bankr. No. 1-03-18019 (Bankr. E.D.N.Y. filed June 19, 2003). Ms. Youkelsone complains that WaMu falsely informed the bankruptcy court that she was delinquent on her Note, failed to apply her payments to the Note, and, “together with [Fannie Mae] engaged in[] the scheme to misappropriate the equity interest in [her] dwelling, and to deprive [her] of the benefit of the Bankruptcy Code” by misrepresentations to that court. Compl. ¶¶ 40-50. “As a result of the Defendant’s continuous fraudulent scheme, [Ms. Youkelsone’s] bankruptcy plan was not approved and [the] bankruptcy petition was dismissed in December, 2003.” ¶ 53.
In August 2002, the New York Supreme Court dismissed the State Court Case,
and the Appellate Division affirmed.
Youkelsone v. Fed. Nat’l Mortg. Ass’n
(
State Court Case
Appellate Division Opinion
),
Judgment was entered in the Foreclosure Case in April 2003, and the sum of $177,609.44, with interest, was ordered due to Fannie Mae. Fed. Nat’l Mortg. Ass’n v. Youkelsone ( Foreclosure Case Judgment of Foreclosure ), No. 36834/01, at *4 (N.Y. Sup. Ct. *5 Apr. 30, 2003), attached as Def. Mem. Ex. 2 [Dkt. 41-3]. The Supreme Court ordered that Ms. Youkelsone’s property be sold at public auction. Id. at *2. Ms. Youkelsone was also sanctioned in the amount of $6,000 for her obstreperous conduct throughout the Foreclosure Case. Foreclosure Case Supreme Court Sanctions Opinion at *5–7.
Early in 2004, Ms. Youkelsone continuing trying tо sell her property privately. She alleges that she entered into a workout plan “with the Defendant [WaMu]” on February 5, 2004, and provided all requested documentation but “Defendant [WaMu] did not respond and made no determination of [Ms. Youkelsone’s] application to cure the default.” Compl. ¶¶ 55– 57. Despite her efforts, “Defendant [WaMu]” scheduled a foreclosure sale on February 26, 2004. Id. ¶ 58. Ms. Youkelsone delivered “a copy of a written contract to Defendant [WaMu]” to obtain permission to sell the property herself on February 19, 2004, and “Defendant [WaMu] formally consented and gave permission . . . and stayed the foreclosure sale.” Id. ¶¶ 62–63. When, however, Ms. Youkelsone was ready to move to settlement and requested a payoff statement on June 21, 2004, “Defendant [WaMu] failed to respond.” Id. ¶ 67. Despite “at least five” efforts, Ms. Youkelsone was unable to obtain the documentation needed to close on the private sale; instead, “the defendants” filed an application in October 2004 to conduct an auction on November 18, 2004. Id. ¶¶ 73–74. Ms. Youkelsone alleges that “[i]n its application for foreclosure dated October 22, 2004 the defendant [WaMu] demanded the sum in the amount of $177,609.44 which included excessive interest rates, improper legal fees and expenses not incurred by the defendant.” ¶ 75.
*6
The Court pauses to note the confusion between WaMu and Fannie Mae present
throughout the Complaint in this case, as well as the Complaint in Ms. Youkelsone’s other case
before this Court, Civ. No. 10-1375. Ms. Youkelsone has separate lawsuits against WaMu
(through FDIC-Receiver) and Fannie Mae, but her recitation of allegations in the instant
Complaint against WaMu clearly includes some aсtions, such as moving to foreclose in October
2004 and demanding payment, that only Fannie Mae could have taken. This confusion also
surfaced in an unsuccessful lawsuit against WaMu’s parent corporation, Washington Mutual,
Inc. (WMI), wherein Ms. Youkelsone alleged that WMI took and was liable for these same acts
of interference, falsehood and unfair dealings.
In re Wash. Mut., Inc.
(
Bankruptcy Court
Opinion
), Bankr. No. 08-12229, Adv. No. 09-50039,
*7 On October 24, 2004, prior to the auction allegedly scheduled for November 18, Ms. Youkelsone received the payoff statement needed to close the sale of the property. Compl. ¶ 78. It included finance charges for the mоnths of delay, attorney fees, and other fees and charges, which she disputes. Id. ¶ 80. Ultimately, however, Ms. Youkelsone sold the property privately on November 11, 2004, for an undisclosed price. Id. ¶¶ 82–83. The Complaint alleges that due to the unreasonable delay in providing a payoff statement and other closing documents, as well as WaMu and Fannie Mae’s other alleged acts, Ms. Youkelsone lost her property and equity of at least $630,000; lost her place of work at a value of at least $15,000/year; lost rental income in excess of $20,000/year; and lost her reputation and the good name of her business to a value of at least $400,000/year. Id. ¶¶ 90–94. Ms. Youkelsone also complains that WaMu and/or Fannie Mae “failed to discontinue” the Foreclosure Case “[u]pon receival [sic] of full payment under the loan,” causing her to “incur further financial damages and loss of substantial property rights.” Id. ¶¶ 99–100. The foreclosure action was maintained until October 2009, and during “the 2008–2009 discontinuance proceeding defendant concealed the documents and legal papers to hide its true identity.” ¶¶ 105, 107–08.
From these events, Ms. Youkelsone complains of FDIC-Receiver/WaMu: Count I, abuse of process in the New York State foreclosure and bankruptcy cases; Count II, breach of contract on the Note and Mortgage by over-charging fees and expenses, failing to provide documents, and acting in bad faith; Count III, unjust enrichment through exorbitant fees, excess charges and wrongfully-retained monies; Count IV, bad faith in aiding and abetting Fannie Mae and lacking fair dealing; Count V, violation of N.Y. Real Prop. Acts § 1921(4); Count VI, Violation of the Truth in Lending Act (TILA), 15 U.S.C. § 1639; Count VII, deceptive consumer practices leading to excessive fees, interest and other charges; Count VIII, misrepresentation, *8 fraud and deceit; Count IX, intentional infliction of emotional harm; Count X, intentional interference with business relations; Count XI, economic duress; Count XII, violation of the Racketeer Influenced and Corrupt Organization Act (RICO), 18 U.S.C. § 1961 et seq. ; and Count XIII, aiding and abetting Fannie Mae in committing fraud, misrepresentation, conversion and misappropriation.
II. LEGAL STANDARD
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated
a claim. Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil Procedure 8(a) requires that a complaint
contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(1). A complaint must be sufficient “to give a defendant fair notice of what
the . . . claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly
,
In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged
in the complaint, documents attached to the complaint as exhibits or incorporated by reference,
and matters about which the court may take judiсial notice.
Abhe & Svoboda, Inc. v. Chao
, 508
F.3d 1052, 1059 (D.C. Cir. 2007) (internal quotation marks and citation omitted). To survive a
*9
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a
claim for relief that is “plausible on its face.”
Twombly
,
A court must treat the complaint’s factual allegations as true, “even if doubtful in
fact.”
Twombly
,
In deciding a motion under Federal Rule of Civil Procedure 12(b)(6), a court may
take judicial notice of public records from other proceedings.
Abhe & Svoboda, Inc.
, 508 F.3d at
1059;
see Covad Commc’ns Co. v. Bell Atlantic Co.
,
III. ANALYSIS
FDIC-Receiver asks the Court to dismiss Ms. Youkelsone’s Complaint in full. It argues that all of her claims are barred by the applicable statutes of limitations; that most of her claims are barred by collateral estoppel; and that the Complaint fails to state any claim upon which relief may be granted. Ms. Youkelsone opposes the motion. She contends that the statutes of limitations do not make her action untimely; that collateral estoppel does not bar any portion of her Complaint; and that she sufficiently states all claims. As set forth below, the Court concludes that all of Ms. Youkelsone’s claims are untimely and dismisses the Complaint.
A. Statutes of Limitations
The first issue the Court must confront is whether Ms. Youkelsone’s claims are timely. She brings claims under New York state law and two federal statutes, TILA (Count VI) and RICO (Count XII). The two federal statutes have their own statutes of limitations, but the parties dispute whether the Court should apply the New York or District of Columbia statutes of limitations to Ms. Youkelsone’s state law claims. Ms. Youkelsone also argues that, even if the *11 more restrictive District of Columbia statutes apply, her Complaint is timely for a number of other reasons.
The Court first determines that the District of Columbia’s statutes of limitations bar Ms. Youkelsone’s state law claims. The Court then addresses the TILA and RICO statutes of limitations, concluding that those claims are also untimely. Lastly, the Court rejects Ms. Youkelsone’s alternative arguments as to why her claims are timely.
1. Because District of Columbia Statutes of Limitations Apply, All of
Ms. Youkelsone’s State Law Claims Are Subject to a Three-Year
Limitations Period and Are Time-Barred
Ms. Youkelsone sues FDIC-Receiver in the District of Columbia pursuant to 12
U.S.C. § 1821(d)(6)(A)(ii) because FDIC is acting as Receiver for WaMu under the Financial
Institutions Reform, Recovery, and Enforcement Act, Pub. L. No. 101-73, 103 Stat. 183 (1989)
(codified in scattered sections of 12 U.S.C.). FIRREA thus extends a special kind of federal
jurisdiction outside the scope of 28 U.S.C. § 1331, the normal source of federal question
jurisdiction. 12 U.S.C. § 1821(d)(6)(A)(ii) (providing that this Court “shall have
jurisdiction” to review a disallowed claim against a depository institution for which the FDIC is
receiver). Inasmuch as her suit is not based on the diversity of the parties’ citizenship, but on an
explicit grant of federal jurisdiction, Ms. Youkelsone argues that federal common law and
federal choice-of-law principles must guide the statute of limitations analysis, not the law of the
forum, the District of Columbia. Pl. Opp. Def. Mot. Dismiss [Dkt. 45] at 13–14. She concludes
that New York has much the greater interest in the controversy, so its law should apply. at
14. FDIC-Receiver rests its argument to the contrary on
A.I. Trade Finance, Inc. v. Petra
International Banking Corp.
,
A.I. Trade
controls the choice-of-law outcome here. The Circuit has determined
that the normal rule—“a federal court applies state law when it decides an issue not addressed by
federal law”—applies “regardless of the source from which the cause of action is deemed to have
arisen for the purpose of establishing federal jurisdiction.”
A.I. Trade
,
The Court thus applies the District of Columbia’s choice-of-law rules to
determine whether to apply the statutes of limitations of New York or the District of Columbia.
In the District, statutes of limitations are procedural, which means that the statutes of limitations
of the forum—i.e., those of the District of Columbia, not those of New York—apply to Ms.
Youkelsone’s claims.
See A.I. Trade
,
Each of her state-law claims falls into one of those two categories. Accordingly, a three-year statute of limitations applies to Ms. Youkelsone’s claims for: abuse of process (Count I), [8] breach of contract (Count II), [9] unjust enrichment (Count III), [10] bad faith (Count IV), [11] New York Real Property Actions and Proceedings Law § 1921(4) (Count V), [12] deceptive *14 practices (Count VII), [13] misrepresentation, fraud and deceit (Count VIII), [14] intentional infliction of emotional distress (Count IX), [15] intentional interference with business relations (Count X), [16] economic duress (Count XI), [17] and aiding and abetting (Count XIII). [18]
Under D.C. law, the statute of limitations period begins to run “from the time the
right to maintain the action accrues.” D.C. Code § 12-301. Because the D.C. Code does not
define “accrues,” the general rule in the District is that “[w]here the fact of an injury can be
readily determined, a claim accrues for purposes of the statute of limitations at the time the
injury actually occurs.”
Colbert v. Georgetown Univ.
,
[13] D.C. Code § 12-301(8) applies. See Smith v. Brown & Williamson Tobacco Corp. , 3 F. Supp. 2d 1473, 1476 (D.D.C. 1998).
[14] D.C. Code § 12-301(8) applies.
See Riddell v. Riddell Wash. Corp.
,
[15] D.C. Code § 12-301(8) applies.
See Rendall-Speranza v. Nassim
,
[16] D.C. Code § 12-301(8) applies.
See Zandford v. Nat’l Ass’n Sec. Dealers, Inc.
, 30 F. Supp. 2d
1, 23 (D.D.C. 1998),
aff’d
,
Inc. v. Domino’s Pizza, Inc.
,
Supp. 2d 16, 48 (D.D.C. 2006).
causation and damages.’”
Farris v. Compton
,
Ms. Youkelsone, who filed her complaint in this Court on July 10, 2009, does not
contest the analysis of D.C. law presented by FDIC-Receiver; she only contests whether it
applies at all because she believes New York law should apply. Thus, she has waived any right
to contest these points now.
See, e.g.
,
United States v. Real Prop. Identified as: Parcel 03179–
005R
,
The publicly available records, of which the Court takes judicial notice, confirm
that Ms. Youkelsone was aware of her alleged injuries likely as early as 2001 and certainly no
later than November 2004. Her efforts to dismiss the Foreclosure Case,
Fed. Nat’l Mortg. Ass’n
v. Youkelsone
, No. 36834/01 (N.Y. Sup. Ct. filed Oct. 4, 2001), were rejected on appeal,
Foreclosure Case Appellate Division Opinion
,
According to her own allegations, the latest date on which the claims here accrued
was either October 24, 2004, when WaMu allegedly provided Ms. Youkelsone with a final
payoff statement, Compl. ¶ 78, or November 11, 2004, when she closed on thе sale of the
property at a loss,
id.
¶ 83. Notably, the Complaint alleges that WaMu harmed her as early as
2001, claims that are even more stale. ¶¶ 28-32. But Ms. Youkelsone filed this action
against FDIC-Receiver for WaMu on July 20, 2009, almost five years after the Bank’s last
relevant act and well outside the relevant three-year D.C. statutes of limitations.
Dubois
,
Notwithstanding that her claims clearly accrued no later than November 2004,
Ms. Youkelsone argues that the Complaint is timely because she alleges “continuing wrongful
conduct” and “continuing injury stemming from the defendant’s direct act and wrongdoings.”
Pl. Opp. at 18. She relies on paragraphs 99 through 113 of the Complaint, which detail how “the
Defendant” did not officially discontinue the Foreclosure Case until October 2009 “with intent to
cause the damagеs to [Ms. Youkelsone] and to her reputation.” Pl. Opp. at 18. This argument is
factually flawed, however: Fannie Mae was the plaintiff in the Foreclosure Case, meaning that
the delay in vacating the New York court’s order in that case cannot be attributed to WaMu or
*17
FDIC-Receiver. Moreover, the mere fact that the Foreclosure Case remained administratively
open until September 24, 2010, has no bearing on Ms. Youkelsone’s ability, or inability to
discover the “essential elements” of the causes of action she has asserted.
See Farris
, 652 A.2d
at 54;
see also In re Wash. Mut., Inc.
,
The three-year statutes of limitations for all of Ms. Youkelsone’s state law claims began to run no later than November 11, 2004. D.C. Code § 12-301(7), (8). Because none of Ms. Youkelsone’s other arguments as to why these claims are timely is persuasive, as explained below, Counts I through V, VII through XI, and XIII will all be dismissed as untimely.
2. Ms. Youkelsone’s Federal Law Claims
Federal law provides the statutes of limitations for Ms. Youkelsone’s TILA claim
(Count VI) аnd RICO claim (Count XII). A TILA claim must be brought “within one year from
the date of the occurrence of the violation.” 15 U.S.C. § 1640(e). “In this circuit, violation of
*18
TILA occurs no later than the date of settlement of [the] loan . . . .”
Lawson v. Nationwide
Mortg. Corp.
,
The actions of which Ms. Youkelsone complains under TILA concern “deliberate
and willful dilatoriness in providing the closing documents.” Compl. ¶ 165. This wrong, if not
its consequences, ended on October 24, 2004, when a payout statement and documents for
closing were supplied to Ms. Youkelsone, after which she sold the property. ¶ 78. There is
no doubt that Ms. Youkelsone believed at the time that she was wronged by delayed delivery of
the necessary documents, knew to whom to complain, did complain multiple times, and was not
the victim of any fraudulent concealment in regard to the untimeliness of settlement papers.
Because the “date of the oсcurrence of the violation” was no later than October 24, 2004, and
Ms. Youkelsone filed her Complaint years after the one-year statute of limitations expired, Count
VI, her TILA claim, is time-barred. 15 U.S.C. § 1640(e);
cf. Dubois
,
It is well established that RICO claims are subject to a four-year statute of
limitations period,
Agency Holding Corp. v. Malley-Duff & Associates, Inc.,
spoken definitively on the issue but cited Rotella ’s discussion of the “injury discovery” rule in its unpublished opinion in Brown , in which the district court applied the “injury discovery” rule to a RICO claim. The D.C. Circuit affirmed without discussing the issue in any meaningful way. Because the “injury occurrence” rule would be less favorable to Ms. Youkelsone than the “injury discovery” rule, the Court’s conclusion does not hinge on this issue. On a motion to dismiss, a court normally accepts all of a plaintiff’s statements of fact, no
matter how dubious or difficult to prove.
Twombly
,
3. Ms. Youkelsone’s Alternative Arguments as to Timeliness Ms. Youkelsone seeks to avoid application of the recited statutes of limitations on two bases. First, she argues that she had filed a state court action in New York that tolled the statutes of limitation, Pl. Opp. at 17, and second, she argues that equitable tolling and/or estoppel should apply because of the continuing nature of the wrongful conduct and the alleged fraud, id. at 18–19. Upon examination, neither argument can prevail.
Ms. Youkelsone relies on a “state court lawsuit [she initiated] in November 2008
against the Bank and its assignees which propelled a range of other lawsuits” as sufficient to toll
the statute of limitations for the instant claims under N.Y. civil procedure rules. Pl. Opp. at 17.
New York State law permits a plaintiff to re-file her suit a second time if a first complaint were
timely filed and
not
terminated by a voluntary dismissal, a failure to get personal jurisdiction
over the defendant, a dismissаl for failure to prosecute, or a final judgment on the merits. N.Y.
C.P.L.R. § 205(a) (McKinney 2012). The Court understands Ms. Youkelsone to be referring to
her lawsuit in the New York Supreme Court of Suffolk County against “Washington Mutual
Home Loans.”
Youkelsone v. Wash. Mut. Home Loans
, No. 40405/2008 (N.Y. Sup. Ct. filed
Feb. 9, 2009). But the New York civil procedure rules do not apply outside proceedings in
*21
New York State courts.
See
N.Y. C.P.L.R. § 101 (McKinney 2012) (“The civil practice law and
rules shall govern the procedure in civil judicial proceedings in
all courts of the state
and before
all judges, except where the procedure is regulated by inconsistent statute.” (emphasis added)).
The Federal District Court in the District of Columbia is not a New York State court. In
addition, it is “quite clear” that “filing an action in another jurisdiction does not toll the statute”
of limitations for claims filed here.
A.I. Trade
,
Ms. Youkelsone also contends that “equitable tolling” or “estоppel” make her
action timely for two reasons.
See
Pl. Opp. at 18–19. First, she insists that the improper course
of conduct continued until 2009, when Fannie Mae officially terminated the Foreclosure Case.
This argument is wrong on the law and the facts. Under D.C. law, statutes of limitations begin to
run when a plaintiff has, or reasonably should have, discovered his or her injury, not when a
plaintiff stops being injured.
See Farris
,
statutes of limitations against WaMu between October 2004, when WaMu allegedly delivered papers for closing the property sale, and October 2009, when the Foreclosure Case was formally ended.
Second, Ms. Youkelsone argues that equitable tolling is appropriate because she
was nоt aware of WaMu and Fannie Mae’s alleged wrongful conduct and because WaMu
fraudulently concealed its actions from her, allegedly engaging in “deliberate
concealment . . . [of] its true identity and true relation to [Ms. Youkelsone’s] damages.” Pl. Opp.
at 19. But the Court has already taken judicial notice of the history of litigation over the
foreclosure of her property including all the appeals, her bankruptcy case, and WMI’s
bankruptcy case, which clearly demonstrate otherwise. Ms. Youkelsone has been litigating this
set of issues since 2001; she cannot now claim ignorance in 2003 and 2004. The cases she cites
in support are completely inapposite,
see Davis v. Johnson
,
For purposes of ruling on FDIC-Receiver’s motion to dismiss, the Court takes the Complaint as pled and assumes that there was a cabal among WaMu, WMI and Fannie Mae that acted improperly to force Ms. Youkelsone from her Brooklyn property in and after 2001. Nonetheless, District of Columbia law does not permit this 2009 lawsuit based on alleged acts by WaMu. The Court concludes and finds that the relevant statutes of limitations have run on all of Ms. Youkelsone’s claims against WaMu and that none of her efforts to avoid that result is meritorious.
B. Claim Preclusion and Failure to State a Claim
FDIC-Receiver also moves to dismiss Ms. Youkelsone’s Complaint because she
has previously contested the ownership and servicing of the Note and Mortgage and is now
precluded from advancing associated claims here and because she has failed to state a claim as to
any of the thirteen counts. Because it concludes that Ms. Youkelsone’s claims are all time-
barred, the Court does not endeavor to untangle exactly which issuеs were resolved in which of
Ms. Youkelsone’s earlier cases and which claims are precluded in the instant case. Instead, the
Court observes that two courts have given preclusive effect to the New York Supreme Court
Appellate Division’s determination that the assignment to Fannie Mae was valid and, therefore,
Ms. Youkelsone cannot allege ownership of the mortgage note by WaMu or WMI. Those courts
thus precluded her from raising claims related to the Foreclosure Case.
Bankruptcy Court
Opinion
,
That fact also reinforces the Court’s skepticism that Ms. Youkelsone has stated a claim as to any of the thirteen counts alleged in the Complaint. For example, if she cannot complain about the Foreclosure Case, she cannot state a claim for unjust enrichment deriving from the premise that the Foreclosure Act was wrongful. See Compl. ¶ 147. Moreover, FDIC- Rеceiver has offered persuasive arguments as to why each of Ms. Youkelsone’s claims should be dismissed, and Ms. Youkelsone’s responses are unconvincing. Compare Def. Mem. at 19 (as to Count VI, observing that the version of TILA in effect in 2004 did not require delivery of payoff statements), with Pl. Opp. at 44 (responding merely that FDIC-Receiver’s argument is “inapplicable”); see also Pl. Opp. at 45 (citing a case, Marine Midland Bank v. Stukey , 427 N.Y.S.2d 123 (App. Div. 1980), in support of “economic duress” claim, that holds that “[t]he threatened exercise of a legal right cannot constitute duress”). Thus, even if Ms. Youkelsone’s claims were not time-barred, they would almost certainly be subject to dismissal for failure to state a claim.
IV. CONCLUSION
For the reasons set forth above, the Court concludes that all thirteen of Ms. Youkelsone’s claims are time-barred. FDIC-Receiver’s motion to dismiss will be granted, and this case will be dismissed.
A memorializing Order accompanies this Opinion.
DATE: December 20, 2012
/s/ ROSEMARY M. COLLYER United States District Judge
Notes
[1] The Complaint omits the final digit of the year оf this event, but the rest of the record confirms it to be 2001. E.g. , Pl. Opp. Def. Mot. Dismiss [Dkt. 45] (Pl. Opp.) at 5.
[2] Ms. Youkelsone avers that the Foreclosure Case was filed in September, although the publicly available records show that it was filed on October 4, 2001.
[3] These allegations may be perceived to be inconsistent. It may be that Ms. Youkelsone only applied to work out her default and that she got no response to that application, not that both parties agreed to a workout plan.
[4] On September 25, 2008, the Office of Thrift Supervision seized WaMu and appointed FDIC as Receiver; on that same date, FDIC-Receiver sold substantially all of the assets and liabilities of WaMu to JPMorgan Chase Bank, National Association. Bankruptcy Court Opinion , 2010 WL 3238903, at *1. Without its subsidiary WaMu, its single asset, WMI filed for bankruptcy protection in Delaware, where Ms. Youkelsone pursued these same allegations against WMI. She told the Delawаre Bankruptcy Court handling the WMI bankruptcy that she had “entered into a workout plan with WMI and on February 5, 2004, provided WMI with all the required documents and information . . . [but] WMI made no determination on [her] application to cure the default.” Id. (citations omitted). WMI allegedly scheduled a foreclosure sale on February 26, 2004, but then agreed with Ms. Youkelsone that she could sell the property privately. Id. at *1–2 (citations omitted). WMI thereafter refused or failed to send settlement papers, as requested, to Ms. Youkelsone, and the matter dragged on into the fall of 2004, when WMI finally sent her the papers needed for settlement and Ms. Youkelsone sold the property at a loss. (citations omitted).
[5] Because it concludes that all of Ms. Youkelsone’s claims are untimely, the Court does not determine whether they are also precluded by any of the myriad of prior cases Ms. Youkelsone has filed or whether she has sufficiently pled a cause of action under any of the thirteen counts. As noted briefly below, however, the Court strongly doubts that Ms. Youkelsone could maintain any of the putative causes of action due to issue preclusion and/or failure to state a claim.
[6]
Erie R.R. Co. v. Tompkins
,
[7] For these purposes, the District of Columbia is treated as a state as opposed to a federally administered entity.
[8] D.C. Code §12-301(8) applies.
See Nader v. Democratic Nat’l Comm.
,
[9] D.C. Code § 12-301(7) applies.
See Ehrenhaft v. Malcolm Price, Inc.
,
[10] D.C. Code § 12-301(7) applies. See News World Commc’ns, Inc. v. Thompsen , 878 A.2d 1218, 1220–21 (D.C. 2005).
[11] An independent “bad faith” claim, which is in the ordinary course limited to the insurance
context,
e.g. Pavia v. State Farm Mut. Auto. Ins. Co.
,
[12] Count V, over which the Court has supplemental jurisdiсtion, is governed by the District’s
residual 3-year statute of limitations in D.C. Code § 12-301(8).
See Dubois v. Wash. Mut. Bank
,
Civ. No. 09-2176,
[19] This might be different if Ms. Youkelsone’s only theory of damages was being in the Damoclean situation of having faced the threat of foreclosure for over five years. Those are not the facts here; the property passed to someone else’s hands no later than November 2004.
[20]
Rotella
discussed the three approaches circuit courts had used in determining when RICO
claims accrue. Although
Rotella
eliminated the “injury and pattern discovery” rule, and
Klehr v.
A.O. Smith Corp.
,
[22] The publicly available records from the New York Supreme Court reflect that the case is closed but do not yield further detail as to how the case was resolved. In her Ms. Opposition to the motion to dismiss in the now-pending companion case, Youkelsone v. Federal National Mortgage Association , Civ. No. 10-1705, she describes the Suffolk County case as: The action [she] filed in November 2008 in [the] Supreme Court of New York, Suffolk County against Washington Mutual Home Loans, Washington Mutual Bank, Washington Mutual and its assignees and transferees. The court allowed FDIC[-Receiver] to be substituted as a party for WaMu Bank . . . and then dismissed the action against FDIC on jurisdictional grounds leaving the claims against the other parties. Pl. Opp. Dismiss Compl., Civ. No. 10-1705 [Dkt. 10] at 6. According to Ms. Youkelsone, the Suffolk County action was “nearly identical” to her lawsuit against Fannie Mae, Civ. No. 10-
[23] Because Ms. Youkelsone’s claims are time-barred and further amendment would therefore be futile, she will not be granted leave to file a Third Amended Complaint. Howell v. Gray , 843 F. Supp. 2d 49, 54 (D.D.C. 2012) (reciting standard for amendment of complaint under Fed. R. Civ. P. 15(a)(2)).