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Antoine v. U.S. Bank National Association

April 22, 2008

JEAN AND MILDRED ANTOINE, PLAINTIFFS,
v.
U.S. BANK NATIONAL ASSOCIATION ET AL., DEFENDANTS.



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

Document Nos. 14, 17

MEMORANDUM OPINION

DENYING THE PLAINTIFFS'MOTION FOR DEFAULT JUDGMENT; GRANTINGDEFENDANT'SMOTION TO DISMISS FRAUD CLAIM WITHOUT PREJUDICE

I. INTRODUCTION

This case comes before the court on the plaintiffs' motion for default judgment and defendant Rita Ting-Hopper's motion to dismiss, or in the alternative, motion for summary judgment. The plaintiffs, Jean and Mildred Antoine, allege that the defendants, U.S. Bank Association; SG Mortgage Securities, LLC; Wells Fargo Bank National Association; America's Servicing Company, DBA; Draper & Goldberg, PLLC; L. Darren Goldberg; and Rita Ting-Hopper, violated the Real Estate Settlement Procedures Act, 12 U.S.C. § 2605; the Fair Debt Collection Practices Act, 15 U.S.C. § 1692; and the District of Columbia Consumer Protection Practice Act, D.C. Code § 28-3901; and committed breach of contract, fraud, intentional misrepresentation and breach of fiduciary duty. The plaintiffs' claims arise from the alleged wrongful foreclosure of their real property located in Washington, D.C.

The court denies the plaintiffs' motion for default judgment, because they failed to request an entry of default from the Clerk of the Court. The court grants, without prejudice, defendant Ting-Hopper's motion to dismiss the plaintiffs' fraud claim, because the plaintiffs fail to plead their claim with particularity against her.

II. BACKGROUND

A. Factual History

The following facts are undisputed. In 2006, the plaintiffs owned the real property located at 3196 18th Street, N.E. in Washington, D.C. Compl. ¶ 12.*fn1 The plaintiffs obtained two mortgages on their real property from Fremont Investment and Loan ("Fremont"). Id. ¶ 13. On August 6, 2006, Fremont sold the plaintiffs' mortgages to SG Mortgage Securities, LLC ("SG Mortgage"), which designated Wells Fargo Bank National Association ("Wells Fargo") as the master servicer. Id. ¶ 15. Wells Fargo later delegated its servicing functions to its subsidiary, America's Servicing Company ("ASC"). Id.

The plaintiffs continued making payments to Fremont for the months of September, October, and November 2006. Id. ¶ 17. On November 3, 2006, the plaintiffs received a letter from ASC informing them that both of their mortgages were in default and that they had accrued late fees and other default charges. Id. ¶¶ 17-18. After disputing the additional charges without success, the plaintiffs received a letter from ASC's law firm, Draper & Goldberg, PLLC ("Draper PLLC"), stating that the minimum balance required to cure the default obligations was $10,658.92. Id. ¶ 21. The letter also included a notice of foreclosure and signaled that L. Darren Goldberg ("Goldberg") was the designated contact person to stop the foreclosure sale. Id.

In early January 2007, a Draper PLLC employee informed the plaintiffs' counsel, via telephone, that the reinstatement amount for both the first and second mortgages was $16,994.70. Id. ¶ 22. When the plaintiffs' counsel requested that Draper PLLC send her the reinstatement amounts in writing and cease communicating directly with the plaintiffs, Draper PLLC failed to do so. Id. ¶ 23.On January 29, 2007, the plaintiffs submitted a cashier's check for $13,195.68 to satisfy the first mortgage. Id. One day later, Draper PLLC sent the plaintiffs a second notice of foreclosure indicating that the foreclosure sale would occur on February 1, 2007 at 10:03 a.m. Id. ¶ 24. On February 5, 2007, the plaintiffs submitted a second cashier's check for $3,799.02 to satisfy the second mortgage. Id. ¶ 23.

Three days prior to the scheduled foreclosure sale, the plaintiffs filed a petition for a permanent injunction against SG Mortgage in the Superior Court for the District of Columbia. Id. On February 1, 2007, the Superior Court granted a temporary restraining order ("TRO") until February 16, 2007 and later extended it for sixty (60) days or until the matter was resolved. Id. ¶ 25.Notwithstanding the TRO, Draper PLLC mailed a third notice of foreclosure to the plaintiffs on April 30, 2007 setting the foreclosure sale for June 7, 2007. Id. ¶ 26.On May 31, 2007, the plaintiffs filed a contempt motion and requested an emergency hearing, but the court did not schedule such a hearing. Id. ¶ 27. Finally, on June 7, 2007, Draper PLLC foreclosed on the plaintiffs' real property. Id. ¶ 28.

B. Procedural History

Two months after the June 7, 2007 foreclosure sale, the plaintiffs filed the present complaint. On August 28, 2007, the plaintiffs served defendants Draper PLLC and Goldberg with process at the law offices of Draper PLLC. Pls.' Mot. for Default J. ("Pls.' Mot.") at 2. The plaintiffs also attempted to serve defendants U.S. Bank and Ting-Hopper by giving a copy of the complaint and summons to Goldberg, but he refused to accept the service documents. Id. On September 14, 2007, the plaintiffs served defendants U.S. Bank, SG Mortgage Securities, Wells Fargo and ASC. Id. A week later, the process server attempted to serve Ting-Hopper again at the law offices of Draper PLLC, but the receptionist refused to accept the service documents, claiming that Ting-Hopper was unavailable. Id. at 3. On October 17, 2007, the process server attempted to serve Ting-Hopper at her residence but no one answered the door. Id. The next day, the process server mailed a copy of the complaint and summons to TingHopper's current address by priority mail. Id. On December 28, 2006, the plaintiffs filed a motion for default judgment claiming that Ting-Hopper had failed to file an answer within 20 days of being served with process. See generally Pls.' Mot. On January 15, 2007, after acknowledging ...


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