The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Plaintiff Karen Evans is trying to regain the family home, lost in a foreclosure against her sister, Dorothy Evans, who is now deceased. Defendants fall into three groups: the beneficiary of the deed of trust, Chase Manhattan Mortgage Corp. ("Chase"); the trustees at the foreclosure sale, Draper & Goldberg PLLC, and that firm's named partners, David Draper and Darren Goldberg, and two of its associates, James Holderness and Ignacio Cortina (collectively, the "Trustees"); and the purchasers at the foreclosure sale, Anthony Chibs and Joan Tirbaney, and their business, Aceware Investment Group LLC (collectively, the "Purchasers").*fn1
An earlier suit by Dorothy Evans against Chase was dismissed by the D.C. Superior Court for want of prosecution. This Court previously determined that the dismissal constituted a final judgment on the merits under D.C. Superior Court Rule of Civil Procedure 41(b) and, thus, barred Plaintiff's present claims against Chase under the doctrine of claim preclusion. Evans v. Chase Manhattan Mortgage Corp., No. 04-2185, Mem. Op. at 6-13 (D.D.C. Mar. 27, 2006) [Dkt. #66]. This Court declined, however, to dismiss as res judicata Plaintiff's claims against the Trustees and Purchasers, for those Defendants offered little more than conclusory assertions that they were in privity with Chase. Id. at 14-18.
Nevertheless, because all parties agreed that determining whether or not the Trustees and Purchasers were, in fact, in privity with Chase is the central issue in this case, the Court directed those Defendants to file renewed motions to dismiss with a fuller analysis of the issue. Order of July 24, 2006, at 2-3 [Dkt. #85]. Those motions are now fully briefed and ripe for decision. With the benefit of the parties' more complete analysis of the foreclosure process and their responsibilities under the deed of trust, the Court now concludes that the Trustees were in privity with Chase, and that the Purchasers were in privity with the Trustees. The Court will therefore dismiss the bulk of Plaintiff's claims against those Defendants as barred by the doctrine of claim preclusion.
Chase was the holder of a Note in the amount of $102,550 that was executed by Dorothy Evans on May 5, 2000. A Deed of Trust on the family home at 1012 6th Street NE, Washington, DC 20002 (the "Property") secured the loan.*fn2 Compl.*fn3 ¶ 17 & Ex. A. By the express terms of the Deed of Trust, Dorothy conveyed the Property to the original trustee (who is not a party to this suit) to be held "in trust, with power of sale" for the benefit of the lender. Compl. Ex. A at
1. The Deed of Trust also provided that the lender could, at its option, appoint a successor trustee at any time by recording a Deed of Appointment. Compl. Ex. A ¶ 20. In this case, Chase did so by appointing Messrs. Goldberg, Holderness, and Cortina as Substitute Trustees in a Deed of Appointment dated February 7 and recorded on February 15, 2002. J.A. Ex. 1 at 1, 4 [Dkt. #63]. By the terms of the Deed of Trust, the Substitute Trustees thus succeeded to "all the title, power and duties" of the original trustee. Compl. Ex. A ¶ 20.
Dorothy defaulted on her payment obligations under the Note and Deed of Trust. While the exact amount of her default is in dispute, the fact of her default is not.*fn4 As was its right, Chase accelerated the loan, demanded full payment, and invoked the power of sale. On or about January 11, 2002, Chase notified Dorothy by letter that it had forwarded her loan file to an "attorney/trustee" to "immediately initiate foreclosure proceedings." Compl. Ex. I. That letter identified "Draper & Goldberg, PLLC" as the "attorney/trustee who is handling the foreclosure." Id. On or about February 12, 2002, Mr. Draper sent a Notice of Foreclosure Sale to Dorothy on Chase's behalf. Compl. Ex. K. That notice set forth the balance allegedly owed on the Note ($104,223.13) and the minimum payment allegedly required to cure the default ($4,418.92). Id. While there is a dispute as to the accuracy of these figures, there is no dispute that they are the amounts provided by Chase to Mr. Draper, and by Mr. Draper to Dorothy. The foreclosure notice identified "David W. Draper, Jr., Esq., Draper & Goldberg P.L.L.C." as the "[p]erson to contact to stop the foreclosure sale," and stated that the sale would take place on March 14, 2002. Compl. Ex. K. The foreclosure notice was recorded on February 12, 2002. Compl. ¶ 46.
The foreclosure sale took place as scheduled on March 14, and the Property was sold to the highest bidders at auction, Mr. Chibs and Ms. Tirbaney. Id. ¶¶ 57, 60. Mr. Chibs and Ms. Tirbaney promptly executed a sales agreement with the Substitute Trustees. See Trustees Mot. to Dismiss Purchasers' Cross-Claim Ex. 1 [Dkt. #69]. On April 11, 2002 - after the foreclosure sale but before title changed hands - Dorothy filed a pro se complaint in D.C. Superior Court styled Dorothy E. Evans v. Chase Manhattan Mortgage Corp. c/o Draper & Goldberg, No. 03-2730. Compl. ¶ 58; J.A. Ex. 3 [Dkt. #63].*fn5 As this Court has already explained, that complaint was dismissed on July 12, 2002, for failure to prosecute. See Mem. Op. at 2-3; J.A. Exh. 12.*fn6
Three days later, the transfer of title proceeded. On July 15, the Substitute Trustees delivered a Trustees' Deed to Mr. Chibs and Ms. Tirbaney. See Compl. Ex. M; Trustees Mot. to Dismiss Purchasers' Cross-Claim Ex. 2 [Dkt. #69].*fn7 That deed was recorded on October 16, 2002. Compl. Ex. M. Mr. Chibs and Ms. Tirbaney later quitclaimed the Property to their business, Aceware Investment Group LLC, through a deed dated October 10, 2003, and recorded on May 27, 2004. Compl. ¶ 87 & Ex. R.
In the meantime, on January 4, 2003, Dorothy Evans died of metastatic liver cancer. Compl. ¶ 64. After an unsuccessful attempt to resurrect Dorothy's case, Plaintiff filed a new complaint in D.C. Superior Court, captioned Karen Evans v. Chase Manhattan Mortgage Corp., et al., No. 04-8985. Chase, with the consent of all defendants then named, timely removed the action to this Court. As noted earlier, the Second Amended Complaint names three groups of Defendants: Chase, the Trustees, and the Purchasers. The claims against Chase, which this Court has already dismissed, alleged that the foreclosure was wrongful because Chase incorrectly determined that Dorothy was in default and misstated the cure amount in the foreclosure notice. Compl. ¶¶ 93, 95, 105, 107, 120, 131, 137, 147-48, 154-55, 172. The claims against the Trustees allege that they failed to check the accuracy of the cure amount in the foreclosure notice; failed to delay the foreclosure sale for Chase to provide an accounting; and failed to pay out the surplus from the foreclosure sale promptly. Id. ¶¶ 94, 97, 114-16, 120, 131, 147-48, 163, 167, 177. Against the Purchasers, Plaintiff seeks a declaratory judgment that she is the rightful owner of the Property. Id. ¶¶ 188, 202. She further pleads wrongful eviction, alleging that the Purchasers ousted her based on a default judgment they obtained by assuring the D.C. Superior Court's Landlord & Tenant Branch that Dorothy had been properly served, although they knew that she had passed away and could not be served. Id.
¶¶ 207-27. Finally, she pleads "interference with [her] right to body [r]emains," alleging that an urn containing Dorothy's ashes was removed and lost at the time of the eviction. Id. ¶¶ 229-37.*fn8
Defendants move to dismiss Plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6). A Rule 12(b)(6) motion challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim. "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The plaintiff need not plead the elements of a prima facie case in the complaint. See Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). In deciding a Rule 12(b)(6) motion, the Court "may only consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citation omitted). Res judicata is an affirmative defense that is generally pleaded in a defendant's answer, but it is also properly brought in a pre-answer Rule 12(b)(6) motion when "all relevant facts are shown by the court's own records, of which the court takes notice." Day v. Moscow, 955 F.2d 807, 811 (2d Cir. 1992); Bethel v. Jendoco Constr. Corp., 570 F.2d ...