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Cooper v. First Government Mortgage and Investors Corporation

July 9, 2002

BETTY COOPER ET AL., PLAINTIFFS,
v.
FIRST GOVERNMENT MORTGAGE AND INVESTORS CORPORATION ET AL., DEFENDANTS.



Document No.: 156

The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

MEMORANDUM OPINION DENYING DEFENDANT SOODAK'S MOTION TO DISMISS

I. INTRODUCTION

This case involves plaintiffs suing various mortgage brokers, assignees, and settlement agents alleging predatory and fraudulent lending tactics in violation of the District of Columbia Consumer Protection Procedures Act ("CPPA"), D.C. Code § 28-3901 et seq., the District of Columbia Mortgage Lender and Broker Act ("MLBA"), D.C. Code § 26-1101 et seq. (formerly § 26-1001), the Federal Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq., and the corollary D.C. statute, D.C. Code § 28-3301. This lending fraud matter is before the court on defendant Darren Soodak's motion to dismiss for failure to state a claim on which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). Mr. Soodak argues that the CPPA cannot apply to him in his individual capacity. For the reasons that follow, the court denies the motion to dismiss because the plaintiffs have properly stated a claim against Mr. Soodak.

II. BACKGROUND

The plaintiffs bring this suit alleging that defendants Darren Soodak, Equitable Mortgage Group, and First Government Mortgage and Investors Corporation violated the CPPA, MLBA, and TILA. Compl. ¶¶ 6, 112-44(k). Specifically, the plaintiffs claim that Mr. Soodak: (1) charged excessive fees and other costs and imposed onerous and unfair terms; (2) misrepresented benefits, interest rates, monthly payments, closing costs, and terms of the mortgage loans; (3) provided conflicting copies of loan documents; and (4) failed to disclose all required information. Id. ¶¶ 113-44(k). The complaint further alleges that Mr. Soodak directly violated the CPPA when he brokered mortgage loans "with [the] knowledge that there was no reasonable probability that the plaintiffs would be able to repay the loans." Id. ¶ 112(a). The plaintiffs also plead that Mr. Soodak "[t]ook advantage of plaintiffs' inability to protect their own interest by reason of their age, infirmities, illiteracy, inability to understand the language of the agreement and lack of sophistication." Id. ¶ 113(b). Mr. Soodak moves the court to dismiss the plaintiffs' complaint pursuant to Rule 12(b)(6).

III. ANALYSIS

A. Legal Standard For Motion To Dismiss

For a complaint to survive a Rule 12(b)(6) motion to dismiss, it need only provide a short and plain statement of the claim and the grounds on which it rests. FED. R. CIV. P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 47 (1957). A motion to dismiss under Rule 12(b)(6) tests whether the plaintiff has properly stated a claim, not whether the plaintiff will prevail on the merits. FED. R. CIV. P. 12(b)(6); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The plaintiffs need not plead the elements of a prima-facie case in the complaint. Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1114 (D.C. Cir. 2000); see also Swierkiewicz v. Sorema N.A., 122 S. Ct. 992, 999 (2002) (holding that a plaintiff in an employment-discrimination case need not establish her prima-facie case in the complaint). Thus, the court may dismiss a complaint for failure to state a claim only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Atchinson v. District of Columbia, 73 F.3d 418, 422 (D.C. Cir. 1996). In deciding such a motion, the court must accept all the complaint's well-pled factual allegations as true and draw all reasonable inferences in the non-movant's favor. Scheuer, 416 U.S. at 236.

B. The CPPA

The CPPA provides consumers with a private cause of action against merchants who make or enforce unconsionable leases or sales provisions. D.C. Code §§ 28-3901, 23-3904(r); Slaby v. Fairbridge, 3 F. Supp. 2d 22, 27 (D.D.C. 1998). The CPPA defines its terms comprehensively so that it can provide a remedy for all improper trade practices. DeBerry v. First Gov't Mortgage and Investors Corp., 743 A.2d 699, 700 (D.C. 1999). Specifically, the CPPA prohibits any person from making or enforcing provisions of contracts for sales or leases which would "mislead, deceive, or damage[]" consumers. D.C. Code §§ 23-3904, 23-3904(r).

The term "person," as defined by the CPPA, encompasses "individual[s], firm[s], corporation[s], partnership[s], cooperative[s], association[s], . . . [and] any other organization, legal entity or group of individuals however organized . . . ." D.C. Code § 23-3901(a)(1). This general definition has been further limited to only include persons involved in "consumer-merchant relationships." Howard v. Riggs Nat'l Bank, 432 A.2d 701, 709 (D.C. 1981). Accordingly, a person who supplies consumer goods or services may be held liable under the CPPA. Id.

C. The Court Denies Defendant Soodak's Motion To Dismiss

The defendant argues that the plaintiffs have not pled facts sufficient to establish a connection between the wrongful acts the plaintiffs allege in the complaint and the specific personal conduct of Mr. Soodak. Def.'s Mot. to Dismiss at 3. The court disagrees. First, to resolve Mr. Soodak's motion to dismiss for failure to state a claim on which relief could be granted, the court limits itself to the relevant law and the facts alleged in the complaint. Second, ...


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