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Poblete v. Indymac Bank

September 28, 2009


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

Re Document Nos.: 5, 16



This matter comes before the court on the motions to dismiss filed by two of the defendants in this case, Ocwen Loan Servicing, L.L.C. ("Ocwen") and United Security Financial ("USF").*fn1 The plaintiff commenced this action after allegedly being victimized by a fraudulent loan transaction through which he purchased real estate at 4130 16th Street, Northwest, in the District of Columbia. The plaintiff accuses the defendants of committing fraud and violating the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§ 2601 et seq., the D.C. Consumer Protection Procedures Act ("CPPA"), D.C. Code §§ 28-3901 et seq., and the D.C. Loan Shark Act, D.C. Code §§ 26-901 et seq. Defendants Ocwen and USF move to dismiss the complaint. For the reasons discussed below, the court treats Ocwen's motion to dismiss as one for summary judgment and grants that motion on the basis of res judicata. In addition, the court grants in part and denies in part USF's motion to dismiss.


The plaintiff's four-count complaint shuns basic principles of grammar and syntax and therefore fails to achieve even a rudimentary degree of clarity or brevity. The court can, however, discern that the complaint stems from a loan transaction that the plaintiff entered into with at least one of the defendants to facilitate the purchase of real estate in the District of Columbia. The plaintiff alleges that the "[d]efendants[,] by fraudulent and deceptive business practices[,] jointly and severally used bait and switch tactics and made a loan that could not be paid by plaintiff." Compl. ¶ 4. The defendants' conduct, the plaintiff contends, was part of "an elaborate scheme to defraud homeowners." Id.

Ocwen moves to dismiss, arguing inter alia that the plaintiff's claims against it are barred by the doctrine of res judicata because the plaintiff filed a previous complaint against it, which "contain[ed] strikingly similar allegations to the instant complaint" and was dismissed by Judge Henry H. Kennedy on January 27, 2009. Ocwen's Mot. at 2. Because consideration of Ocwen's res judicata argument requires the court to examine matters outside the pleadings -- namely, the filings in the previously dismissed case -- the court will treat Ocwen's motion as one for summary judgment. FED. R. CIV. P. 12(d); see, e.g., Walker v. Seldman, 471 F. Supp. 2d 106, 111 (D.D.C. 2007), aff'd, 2008 WL 4682659 (D.C. Cir. Apr. 8, 2008); Croskey v. U.S. Office of Special Counsel, 9 F. Supp. 2d 8, 10-11 (D.D.C. 1998), aff'd, 1999 WL 58614 (D.C. Cir. Jan. 12, 1999) (noting that "[i]n the event matters outside the pleadings are presented to and not excluded by the court, and the court assures itself that such treatment would be fair to both parties, a motion to dismiss may be treated as one for summary judgment").

USF also moves to dismiss the claims against it under Federal Rules of Civil Procedure 8, 9 and 12(b)(6). See generally USF's Mot. The plaintiff opposes both defendants' motions. See Pl.'s Opp'n to Ocwen's Mot.; Pl.'s Opp'n to USF's Mot. The court turns now to the applicable legal standards and the parties' arguments.


A. The Court Grants Defendant Ocwen's Motion for Summary Judgment

1. Legal Standard for a Motion for Summary Judgment

Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.

In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id.

The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he "support[s] his allegations . . . with facts in the record," Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993)), or provides "direct testimonial evidence," Arrington v. United States, 473 F.3d 329, 338 (D.C. Cir. 2006). Indeed, for the court to accept anything less "would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial." Greene, 164 F.3d at 675.

2. Legal Standard for Res Judicata

"The doctrine of res judicata prevents repetitious litigation involving the same causes of action or the same issues." I.A.M. Nat'l Pension Fund v. Indus. Gear Mfg. Co., 723 F.2d 944, 946 (D.C. Cir. 1983). Res judicata has two distinct aspects -- claim preclusion and issue preclusion (commonly known as collateral estoppel) -- that apply in different circumstances and with different consequences to the litigants. NextWave Pers. Commc'ns, Inc. v. Fed. Commc'ns Comm'n, 254 F.3d 130, 142 (D.C. Cir. 2001); Novak v. World Bank, 703 F.2d 1305, 1309 (D.C. Cir. 1983).

Under claim preclusion, "a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Drake v. Fed. Aviation Admin., 291 F.3d 59, 66 (D.C. Cir. 2002) (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)). "Whether two cases implicate the same cause of action turns on whether they share the same 'nucleus of facts.'" Id. (quoting Page v. United States, 729 F.2d 818, 820 (D.C. Cir. 1984)).In making that determination, courts look at "whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' ...

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